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Loyola University of Chicago Law Journal
Summer, 1992, Page 631
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AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES: A COMMENTARY *
George Anastaplo **
Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute justice one with another, if you do not oppress the alien, the fatherless or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever."
Jeremiah 7:3-7
TABLE OF CONTENTS - CONTINUED
9. EDUCATION IN THE NEW REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . 731
10. THE CONFEDERATE CONSTITUTION OF 1861 . . . . . . . . . . . . . . . . . 747
11. THE EMANCIPATION PROCLAMATION OF 1862-1863 . . . . . . . . . . . 757
12. AMENDMENTS XIII, XIV, AND XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789
. . . .
APPENDIX A: LETTERS EXCHANGED BY THOMAS JEFFERSON AND
JOHN ADAMS (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849APPENDIX B: THE CONFEDERATE CONSTITUTION (1861) . . . . . . . . . . 855
9. EDUCATION IN THE NEW REPUBLIC
I.
Once the Constitution and its Bill of Rights were established, the American people could settle down to governing themselves. The education of that people and their leaders became critical to how competent such self-government would be. Instructive in any assessment of this education is an appreciation of what Americans in the early Nineteenth Century drew upon from antiquity besides considerable respect for the republican institutions of Rome. I observed, in a treatise on American constitutional law published two decades ago, that I myself drew for inspiration and guidance upon both the Apology of Socrates as recorded by Plato and the Declaration of Independence of which Thomas Jefferson was the initial author. I observed on that occasion,
The tension evident in this study may be inevitable for anyone who tries to "live with" both the Apology of Socrates and the Declaration of Independence¾for anyone, that is, who finds himself drawn to two public declarations which are, despite their superficial compatibility, radically divergent in their presuppositions and implications. Thus, an attempt is made [in this study] to see American constitutional law and political thought from the perspective of our ancient teachers.[120]
We should be reminded of how the ancients have come to be regarded by Americans by considering what Jefferson and his contemporaries had to say about Plato, perhaps the greatest of the philosophical writers of antiquity. Jefferson's approach to that author was evidently the typical American approach, so much so that Plato could soon be (if he was not already) reduced to insignificance in American political thought. By the time of Abraham Lincoln, for example, Plato is rarely referred to by public men.
Jefferson's own high standing in American political thought is generally recognized:
Thomas Jefferson is not the only spring of American political thought, but he is the primary one. All the principles of American political life, and all the tensions among those principles, [Page 732] show themselves in his works and words. He served in the Virginia House of Burgesses and House of Delegates and as governor of Virginia and was a delegate to the Continental Congress from 1775 to 1776 and again from 1783 to 1785. Appointed a member of a committee to which Congress assigned the task of drafting a statement declaring and justifying the separation of the American colonies from England, he was deferred to by his fellow committee members and thus emerged as the principal author of the Declaration of Independence. That Declaration, appealing before the opinions and judgment of all of mankind to principles of right embodied in nature, manifested the fundamentals upon which the United States rest and to which all modern liberal democracies look.[121]
Our point of departure for this discussion is the proposition that there may be seen in the dialogues of Plato and in the political careers of Jefferson and his contemporaries two forms of excellence. The "American" critique of Plato should help us to notice problems that we in this Country have always had in sensing the amplitude and depth of the more thoughtful ancients. We should, after surveying the Jeffersonian response to Plato, be better able to get into the minds of the men who not only developed the Constitution of 1787 and its first twelve Amendments, but also trained their successors.
II.
Our principal texts for this discussion are Thomas Jefferson's letter from Virginia of July 5, 1814 to John Adams in Massachusetts, and Adams's response of July 16, 1814.[122] These letters are part of the famous correspondence between the two former Presidents that was revived and extended during the last decade and a half of their long lives. This intimate correspondence transcended the bitter political differences they had had at the turn of the century, which culminated in Jefferson's defeat of Adams in the presidential contest of 1800-1801. One cannot imagine any prominent American politicians today being either inclined or equipped to carry on a private correspondence with the learning, grace, and seriousness evident in these letters. For one thing, both Jefferson and Adams exhibit a relaxed familiarity with the ancients and what they called [Page 733] "classical reading," so much so that their opinions about the matters they range over still invite respectful attention.
In 1814 Jefferson was seventy-one-years old, Adams was seventy-eight. Their correspondence, which had been renewed in 1812, continued into 1826. It was in that year, 1826, that these last two surviving signers of the Declaration of Independence died on July 4th, fifty years to the day after their signing of that founding instrument. Adams, although he had always been somewhat more old-fashioned than Jefferson, found himself agreeing with much that Jefferson said, especially about the ancients. Thus, we see in this exchange not simply the Jeffersonian reading of the ancients but, we might say, the reading as well of the better-educated American (that is, the modern) democrat.
Although old age was catching up with both men, who were by that time retired from active political life, they remained quite lively in their speculations. That age was indeed catching up with them may be seen in what Jefferson could say, and Adams could agree to, about how their bodies were wearing out. Mechanical analogies could be drawn upon in this July 1814 exchange and elsewhere, with machinery spoken of, reflecting perhaps a more or less materialistic approach to such matters. Such materialism is not without significance in any effort to understand why Jefferson and Adams think and talk as they do about the Platonic, if not even the ancient, understanding of things.
I will work primarily from the Jefferson letter of July 5, 1814. My account of it is divided into three related parts: (1) the political, if not world- wide, circumstances of the day, particularly as seen in the career of Napoleon Bonaparte and in the activities of England; (2) an extended critique of a Platonic dialogue; and (3) the educational circumstances of the day, particularly with a view to reforms in the schooling to be provided American youth.
III.
Jefferson, after commenting on visitors and on matters of health, turns to the depredations abroad of Napoleon Bonaparte and of England, who had been deadly opponents during the then-recent European wars. He characterizes the French leader as "the Attila of the age," adding, "Bonaparte was a lion in the field only. In civil life a cold-blooded calculating unprincipled Usurper, without a virtue, no statesman, knowing nothing of commerce, political economy, or civil government, and supplying ignorance by bold presumption." Jefferson, after "rejoic[ing], for the good of man-[Page 734]kind, in the deliverance of Europe from the havoc which would never have ceased while Bonaparte should have lived in power," wonders how the United States should respond to triumphant England: "I see with anxiety the tyrant of the ocean remaining in vigor, and even participating in the merit of crushing his brother tyrant." English impressment of American sailors had offended Jefferson. He is now concerned about whether New England will stand up to English demands with respect to the fisheries that mean so much to Massachusetts. He hopes that Massachusetts will choose to fight for her rights¾but he recognizes that New England, not Virginia or the South, should take the lead in the development of that policy.
Whatever the party and sectional differences in the United States concerning the War of 1812¾it is partly for this reason that Jefferson proceeds with some delicacy here¾Jefferson does seem to find a sympathetic audience in Adams.[123] Adams has reservations, but does not seem to be offended by, but rather endorses, what Jefferson says about Napoleon Bonaparte and England.
We are reminded by Jefferson's remarks about foreign policy that much of Jefferson's career and thought has a political context. He, like Adams, is a vigorously practical-minded man: the whole world is their domain and universal respect for liberty under law is their end. This is both good and bad. It is important that political necessities, and hence common sense and natural right, be recognized. But are there not risks in making too much of the practical?
An undue emphasis upon the practical may be seen in what has become of higher education in our own time. Consider, for example, the spectacular ceremony on October 3, 1991 on the campus of the University of Chicago, where a dozen honorary degrees were conferred in opening the University's year-long centennial celebration. In the awards much was made of research, of creating new knowledge, and of the usefulness of such knowledge. Very little, if anything, was said about studying the ancients. The usefulness of research is epitomized in our time by that dramatic harnessing of nuclear energy which was demonstrated for the first time on the campus of the University of Chicago on December 2, 1942. Is not too much talk heard these days of creating knowledge, and not enough of discovering it or, even better, of rediscovering what [Page 735] thoughtful human beings have always known? Few if any of the accomplishments celebrated these days will be of much significance, except perhaps as transitions, to thoughtful observers a quarter-century (to say nothing of a century) hence.
Another way of putting this is to say that the prudence and eloquence of the Founding Period in this Country drew upon intellectual and spiritual capital that was not being replaced by the education and training of the decades that followed. Lincoln and his colleagues had, by the middle of the Nineteenth Century, "used up" much of what remained of that intellectual capital, except as it continued to be incorporated in the plays of Shakespeare. A failure to go back to our roots may be seen in what has become of both Biblical influences and classical education among us. This failure contributes to much that is shallow and shortsighted in our thought, however decent or, at times, self- sacrificing and even heroic we may be.
IV.
The virtual abandonment of classical education in this Country (and elsewhere) was anticipated by such criticism as that found in the Jefferson- Adams correspondence that we are sampling. These two patriots' condemnation of Plato was prompted by Jefferson's attempt to read the Republic, which we consider one of the more "accessible" of Plato's dialogues but which he found very difficult.
It was not for lack of trying on Jefferson's part. Much the same response to Plato is reported by Adams, who had once tried reading the dialogues in various translations, as well as consulting the Greek texts. We notice the importance of leisure for such efforts, which is not unrelated to the aristocratic presuppositions of much of classical thought. Such presuppositions may put off the democrat somewhat, even when he is not fully aware of their implications.
Jefferson reports that his attempt to read the Republic seriously "was the heaviest task-work I ever went through." It was anything but "amusement." Rather he complains about having had to wade through "the whimsies, the puerilities and unintelligible jargon of this work." The joy of reading Plato, to which many have testified across millennia, escaped both Jefferson and Adams.[124]
What is it about Plato that offended Jefferson and Adams so [Page 736] much? It is not only his obscurity¾for there are things about Plato that are only too clear and can be dismissed by Jefferson as "puerilities." One can be reminded here of the protests by another democratic politician¾Callicles, in Athens, who is recorded in Plato's Gorgias as complaining vigorously about the puerilities of Socrates. This suggests that there is, in how Plato approaches serious matters, something that is likely in its austere eroticism to arouse the suspicion, if not the enmity, of the partisans of democracy, if not of practical-minded men generally.
V.
It is the democrat in Jefferson who has a high opinion of certain Romans, especially Cicero. Here, as elsewhere, Jefferson expects Adams to agree with him for the most part. In fact, Adams says that Jefferson's opinion about Plato "perfectly harmonize[s]" with his own. Adams reports that one of the few things he ever learned from Plato was that sneezing was a reliable cure for hiccoughs.[125]
Jefferson can speak with respect elsewhere of the Roman Cato and of the Athenian Aristides.[126] These are virtuous men of action who are evidently considered republican in their sympathies. We are reminded again and again, upon reading the works of Jefferson and his American contemporaries, that Rome was in their eyes the other great republic before the Unites States. Jefferson's republican sympathies are evident when he considers the great men of antiquity. We can see here how sensible the sturdy republican can be.
Jefferson knows that Cicero thought highly of Plato. He does not really consider, however, what the worthy Cicero could see in Plato: he may sense that there is a serious problem for him here, but he does not dwell upon it. We seem to have here one more instance of a modern failing: the ancients, including one's great predecessors, need not be taken seriously. Predecessors are not given credit for intelligence, thoughtfulness, or sensitivity commensurate to our own.
Democrats do tend to believe that they are equal to all others. This principle of equality applies to the past as well as to contemporaries. So why should we defer to any authority of the past? Besides, does not the desire for independence promote liberation [Page 737] from the tyranny of the past?[127]
Even so, Jefferson has the intellectual integrity not to assume that it was only Plato's style that accounted for Cicero's high praise of Plato.
VI.
Plato's style does dupe some readers, Jefferson believes. The "elegance of his diction" helps account for his reputation. A pleasing style can give the impression of wisdom.
Elsewhere Jefferson refers to Greek as "the most beautiful of all languages."[128] Whatever reservations Jefferson has about Plato, he can, as a great stylist himself, recognize in Plato the master of a language.
Emphasis is placed by Jefferson, in explaining Plato's reputation, on elements other than his thought: not only style, but also fashion and authority. Certainly, Plato's reputation is a massive fact that has to be accounted for.
VII.
The "dreams of Plato" are singled out by Jefferson for special condemnation. They are seen as fanciful, partaking, it seems, of Plato's questionable utopian projects.
Do not the dreams of Plato stand, somehow, in opposition to the American Dream? How are they to be distinguished? Is not much more made in the United States of the pursuit of happiness? Compare the classical emphasis upon happiness as something that is rooted in virtue. We are not likely to be comfortable in making much of a pursuit of virtue, especially if that pursuit should be guided by the community.
Jefferson, as perhaps the leading apostle among us of a dedication to the pursuit of happiness, is substantially modernist in his temperament. Elsewhere he identifies himself as an Epicurean, which is not to be seen (he insists) as simply hedonism or as an invitation to indolence.[129] But is it not difficult to avoid a decline into mere hedonism if much is made of the pursuit of happiness?[130] [Page 738]
Certainly, hedonism is more likely to become dominant among a people if individualism is encouraged, something that is likely whenever happiness and its pursuit, rather than virtue, become of consuming interest.[131]
VIII.
If Plato is tested by reason, Jefferson argues, he is exposed as full of "sophisms, futilities, and incomprehensibilities." Although he is reputed to be "a great Philosopher," rigorous thinkers can see that he is hardly competent in his arguments. [Page 739]
Jefferson does not have much doubt about this. His only difficulty here is that others do not see as well what is obvious enough to him¾and what should have long been obvious to everyone who stopped to examine what Plato does. It remains a mystery to him that Plato can continue to be regarded by some as "a great Philosopher." In much of what Jefferson says, he seems to be backed up by Adams, who had been "disappointed" in his own study of Plato.
IX.
Central to Jefferson's critique of Plato is that he is "one of the race of genuine Sophists." Is this the peculiarly democratic response to serious philosophic thought? Is this what comes from being too practical in one's orientation?
For the Athenian democracy, we should remember, Socrates too was essentially a sophist. That is, he appeared to the Athenians to be much like the itinerant sophists. In Aristophanes' Clouds, Socrates is portrayed as prepared to train a student to become a sophist¾and, as such, to be able to avoid having to abide by the laws of the city. [132] Jefferson does speak much more kindly of Socrates than he did of Plato¾but he did not have to endure Socrates as a critic of his city and of American politicians and their democratic policies.
What is there about sophistry which is particularly troublesome for Jefferson? Sophists pose political challenges, in that they are essentially outsiders, even when they are native-born. They undermine the political integrity of the community, caring more for their own advancement than for the concerns of patriotic citizens. Since they care more for success and self- interest than for truth or the common good, they resort to sophisms¾that is, to arguments that are deeply flawed, however persuasive they may appear and however appealing they may be in some circumstances. In a sense, Jefferson reasons back to the sophistry of Plato by finding him guilty of using arguments that are far less conclusive than they are made out to be in the dialogue.
Jefferson does not seem to be sure whether Plato himself is aware of how flawed his arguments are. But perhaps that is the way sophists are: there must be some arguments that they depend on, to guide them in their way of life, of which they themselves do not appreciate the limitations. [Page 740]
X.
Jefferson turns, partly in order to account for the Platonic reputation, to a critique of the serious practical consequences of the general respect for Plato in the Western World. The allure of his style aside, Plato survives in large part (according to Jefferson) because his "whimsies" are incorporated "into the body of artificial Christianity." That is, institutional Christianity finds Plato useful. [133] He does not say here how the Christians who used Plato understood him.
Jefferson's suspicion of, if not hostility toward, institutionalized religion remained with him to the very end. (It may be found in abundance as well among intellectuals down to our day.) Thus Jefferson, in the last fortnight of his life, could still inveigh against "monkish ignorance and superstition,"[134] reflecting thereby the influence upon him of the Enlightenment. He long believed that a priest-ridden people could not maintain free government.[135] He does see organized religion as an aid to good government, challenging the supposition of some legal scholars of his day that "Christianity is part and parcel of the laws of England."[136] That Plato had been used, and continued to be used, the way he was by organized religion is, for Jefferson, a major defect in him.
Adams does not fully share Jefferson's suspicion of organized religion, however much he too complains as well of the difficulty if not even the uselessness of the Platonic texts. Although he too is prepared to grant the supposed evils of the Roman Catholic Church that Jefferson referred to, he warns against the dangers of atheism.[137] Certainly, Adams is more respectful than Jefferson about the contribution that Christianity can make to an effective [Page 741] political order.[138] Has the intellectuals' disavowal of religion, in the Jeffersonian mode, meant in effect that the more vital religious movements in this Country tend more and more to be dominated by passions that are not subject to the discipline of educated men and women?
XI.
"The Christian priesthood," Jefferson argues, "saw, in the mysticisms of Plato, materials with which they might build up an artificial system which might, from its indistinctness, admit everlasting controversy, give employment for their order, and introduce it to profit, power and pre-eminence." Thus, he believes, the obscurities of Plato could provide Churchmen what the simple truths of Jesus could not. What makes Plato particularly attractive to Churchmen is that "nonsense can never be explained."[139] This means that there is no end to the mystery and speculation that self-serving religionists can exploit.
Jefferson, when he deals with such matters, emphasizes the motives of enterprising men, in such a way as to rely primarily (if not exclusively) on the low instead of the high. Whatever elevation that there may be in Plato's work cannot be seen for what it is. This is related to what we have become accustomed to in modern materialist accounts of personalities and events.
XII.
Jefferson singles out, among what he considers the many dubious arguments of Plato, the case that is made in the dialogues for the immortality of the soul. He seems to be concerned about this in our 1814 letter not so much for what is said about immortality in the Republic (which is relatively little) but rather for the use made of this teaching (from other dialogues) by Christianity.[140]
We have observed that Jefferson does not investigate what the intelligent and sober-minded Cicero saw in Plato. Nor does he consider, we now notice, what Plato himself believed in his own arguments about such matters as the immortality of the individual [Page 742] soul. That is, Jefferson does not consider what it would mean if Plato himself recognized the limitations of various of the arguments that are made in the dialogues. This bears upon whether Jefferson or any of his contemporaries, with the possible exception of Montesquieu, Jean-Jacques Rousseau, and Edmund Burke, were really able to read the most serious writers of antiquity. This general disability comes down to our day, and not only among those interested primarily in politics.
Adams and Jefferson seem to be agreed that the thoughtful man should not be concerned about the immortality of the soul, certainly not if he has conducted himself justly. Nor, they are agreed, is total oblivion to be feared.[141] These responses by them to the prospect of death find considerable support in the Platonic dialogues, properly understood.
XIII.
Jefferson was thankful that Plato's influence on religion was not matched by a like influence on social policy. He considers Plato's opinions about popular government to be politically harmful, and it was fortunate (he believed) that they did not catch on. Particularly to be regretted is the emphasis in the Republic on the community of wives and children.
Adams is, here as elsewhere, somewhat more astute than Jefferson about the subtleties of ancient thought. Although he could be as critical as Jefferson of any endorsement by Plato of a community of wives and children, he could also see this measure, however questionable, as a way of preventing the perpetuation of family privilege. We, on the other hand, must wonder why neither Adams nor Jefferson took issue with Plato on the matters that democrats are usually troubled by, such as the reliance in the Republic upon a philosopher-king, the severe criticisms of democracy, the resort to various tyrannical-seeming institutions (including censorship), and the recourse to noble lies.[142] [Page 743]
Perhaps critical to the Adams-Jefferson dismissal of Plato and classical political philosophy is the accepted opinion of their own time that, as Adams puts it, "Government has never been much studied by mankind, but their attention has been drawn to it in the latter part of the last century, and the beginning of this, more than at any former period"¾and this has led to many recent experiments in constitution-making that have been unprecedented and instructive. In these matters, it seems, the ancients have become obsolete, or so Americans could easily believe in the early Nineteenth Century once their new national constitution had taken hold.
XIV.
It is vital to Jefferson's approach here that Plato be understood as having misrepresented Socrates. Socrates, he says, "had reason indeed to complain of the misrepresentations of Plato; for in truth his dialogues are libels on Socrates." Xenophon, for example, is regarded by Jefferson as a more reliable guide to the historical Socrates.[143]
The distortions practiced by Plato with respect to Socrates were according to Jefferson, far exceeded by the distortions practiced by organized religion with respect to Jesus. This is a theme that he takes up again and again in his correspondence. Jefferson, as a rationalist, can catalogue elsewhere what he considers the questionable doctrines engrafted upon the account discernible in the Bible of the historical Jesus.[144]
Jefferson is convinced that the discerning reader can detect beneath the surface of documents such as dialogues and gospels the simple, goodhearted men who had inspired those documents. Does this Jeffersonian conviction fail to appreciate how great, and complex, certain men truly are? This bears upon how difficult the [Page 744] reading of the greatest works of the mind can be. The subtlety and playfulness, and hence the true seriousness, of a Plato or a Socrates (or of Jesus?) are not apt to be noticed or given sufficient weight by the enlightened modern.
Is this a peculiarly democratic failing, reducing as many things as possible to a low, if not the lowest, common denominator?
XV.
Jefferson moves in his July 5, 1814 letter from a condemnation of Plato to a concern for the education of his day, especially because the young and others remain misled about Socrates, Jesus, and the like. Professional educators, he believes, have an interest in exaggerating the intricacies of Plato, and professional churchmen have an interest in keeping people in thrall.
Furthermore, he complains, the attitudes and activities of the young at this time (1814) leave much to be desired. They are hardly serious about education. In fact, he reports, they are not much inclined toward formal education at all; they want to be completely self-sufficient; they resist being disciplined by any authority. In a sense, it can be said, they are imitating Jefferson's own approach to the ancient teachers: they too intend to be independent.
Observations of this kind about education later found full expression for Jefferson in the founding of the University of Virginia. The emphasis there also tends to be utilitarian, albeit on a high level. For one thing, there seems to be little room in his curriculum for serious philosophy of the kind exhibited by Plato and Aristotle.
The arguments used by Jefferson to replace ancient book-learning (except for history, logic, and perhaps drama and poetry) with other, more modern, disciplines may have contributed to the already-developing American suspicion of book-learning as such, something that Mark Twain can have great fun with a half-century later. One sees again and again down to our day that humane letters are being squeezed out of curricula in this country, and this by people of good intentions (teachers, administrators, and students alike) who consider themselves quite practical.
All this may reflect the growing deference among us to individualism and an increasing alienation from community, whether the community be the political community of one's own time or the community of learned men and women across the centuries. One consequence of this is the widespread suspicion among us of any [Page 745] effort to "legislate" morality¾that is, of the effort by any community to insist upon the development and preservation of those opinions about right and wrong that the routine law-abidingness and dedication we do need depend on. Or, put another way, the Jeffersonian critique, for the sake of sound politics, of ancient philosophical thought may well have contributed to the subversion among us of serious political thought and hence of the political order itself.
XVI.
Jefferson, Adams, and their fellows were political men. They were moved more by the spirited element in the soul than by the erotic. Perhaps this contributed to their inability to read Plato properly. But their misreading can help us see Plato better¾to see for him not only the importance of the erotic but also the secondary status (however important) of the political even in such a dialogue as the Republic. Our concern here has not been so much with the education of Jefferson and Adams, but with their influence and the influence of their generation upon the education of their successors. Jefferson's personal reliance upon the classics is testified to by his repeated recourse to them in his old age, such as in this 1819 letter: "My business is to beguile the wearisomeness of declining life, as I endeavor to do by the delights of classical reading and of mathematical truths, and by the consolations of a sound philosophy, equally indifferent to hope and fear."[145]
We find in the American Founders political men who are distinguished by their dedication to the proposition that all men are created equal. This authoritative doctrine, which is at least in part attributable to Biblical influences, is grounded, to some extent, in nature. But does it not at the same time tend to ignore aspects of nature, and not only because of the widely- heralded conquest of nature that is looked to as a means of making all of us the beneficiaries of the resources available to be wrested from nature?[146] To the extent that nature seems, for Jefferson, more to be found in matter than in the ideas, Plato should be suspected by him, espe-[Page 746]cially since Plato's ideas are regarded by Jefferson to be undisciplined and subject to abuse by conniving men. Perhaps no single topic is in as much need of serious examination today by thoughtful students of politics as well as of philosophy as is the topic of the nature of nature.
A good place for Americans to begin such an inquiry is the Declaration of Independence. Not only should its "created equal" language be examined, but also the teaching there about inalienable rights. Vital to this inquiry should be a consideration of what the right of revolution implies about standards of right and wrong, of good and bad. These standards do not depend on what governments happen to demand from time to time. Nor, it should at once be added, do these standards look to chance personal preferences alone. In these matters Shakespeare continues to be instructive, bringing Biblical doctrines and classical thought together for us.
XVII.
Should one be drawn, as some of us are inclined to be, to both the Apology of Socrates and the Declaration of Independence? That question cannot be fully answered until one has examined both the Declaration and the Apology with the care that they invite and deserve. Does not the Declaration itself, for example, reflect more of ancient yearnings than Jefferson himself realized?
Jefferson recalls in 1825 that he had, upon drafting the Declaration, "intended [it] to be an expression of the American mind," drawing on the books of Aristotle, Cicero, Locke, and Sidney.[147] What, we may well wonder, did Jefferson get from Aristotle? And what, we may also wonder, did he consider the significance of the fact that Aristotle was Plato's greatest student, a student who always spoke with great respect about Plato even when he seemed to differ from him?
Jefferson's draft of the Declaration, we should remember, was reviewed carefully and altered considerably by the Continental Congress. Even Jefferson's original version had been written with the American people in view, much more so than his private letters (which are, we have noticed, tailored to his readers).[148] Recognition of Anglo-American constitutional history is also evident in the Declaration.[Page 747]
Thus, it can again be said, the Declaration of Independence reflects an awareness among the American people of that which is by nature right. Old- fashioned notions about natural right, influenced perhaps by a sense of morality reaffirmed and refined by long-established religious influences, helped shape the Declaration of Independence in ways that Plato can perhaps help us notice. Lincoln, for one, could see in the Declaration's insistence upon equality the basis for an eventual repudiation of slavery in the name of justice. We may well wonder whether mid-Nineteenth Century Americans, better grounded in the ancient authors and less moved by religious passion, would have been able to deal more prudently than they did with the institutions of slavery and of radical individualism which seriously threatened constitutional government in the United States.[149]
10. THE CONFEDERATE CONSTITUTION OF 1861
I.
The most massive attempt thus far to amend the Constitution of 1787 was made by the leaders of the Secessionist movement in 1860-1861.[150] Even so, the greatest tribute ever paid to the Constitution since the Founding Period may have been in 1861 by the framers of the Constitution of the Confederate States of America.
This 1861 tribute took two forms. First, there was the considerable reliance upon the 1787 Constitution in framing the Confederate Constitution. Ninety percent of the 1861 Constitution repeats, with much the same ordering and even numbering, what had been done in the Constitution of 1787 and in its Bill of Rights of 1791. The extensiveness of the 1861 imitation is illustrated by the provision for what we know as the District of Columbia:
The Congress shall have power . . . . To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States [1787: "of particular States"] and the acceptance of Congress, become M[Page 748] the seat of the Government of the Confederate States [1787: "of the United States"]. . . . [151]
I find it intriguing that such a provision, with its specification of "ten miles square," should be regarded as precisely what was still needed three- quarters of a century after the Constitution was first written.
The considerable, even slavish, reliance in 1861 upon the 1787 Constitution is even more remarkable in light of the determination of the Confederate States to separate themselves from the government, if not from the way of life, called forth by the earlier Constitution. We come now to the second form that the 1861 tribute took, the pervasive effort by the Secessionists to frame the new Constitution so as to avoid the kind of central government against which they were rebelling. Is it not tacitly conceded, by the changes made in the 1787 Constitution, that without such modifications the new government might be empowered to act, or at least might well act, like the old government?
Light can be shed on our constitutional processes by noticing some of the shifts made in 1861 by the Confederates when they undertook to rewrite a constitution. There can be illuminated thereby both the Constitution of 1787 and the Amendments to it since the Civil War.
II.
The Confederate Constitution implicitly concedes the plausibility of the interpretation of the 1787 Constitution that had been advanced by such nationalists as George Washington, the young James Madison, Alexander Hamilton, John Marshall, Daniel Webster, Henry Clay, Abraham Lincoln, and perhaps the young John Calhoun. The 1861 Constitution provides, in effect, a commentary upon the United States Constitution, as well as a challenge to its principles.
Various matters that had been controversial during the preceding half-century were disposed of in the 1861 Constitution. It was evidently understood that it would not be enough to count on new, and more congenial, interpretations of the constitutional provisions that had been so troublesome. That was too risky [Page 746] and besides, there would always be some who would find it in their interest to [Page 749] advance the old interpretations. For example, the 1861 Constitution provides that the President has the power to "remove at any time" civil officers he has appointed. Such a provision in the Constitution of 1787 would have strengthened the position of Andrew Johnson in 1868: those determined to impeach him would have had to look for other offenses to allege.
The Nationalists had made much since 1789 of those implied powers of Congress that some States' Rights people had sought to forestall in 1789 by trying to add "expressly" to the Tenth Amendment. It may seem somewhat surprising, therefore, that the Confederate framers did not say in their 1861 Constitution that Congress would have only the powers expressly delegated to it. But it must have been recognized that to do so would have made it difficult for the new Confederate government to do effectively the things it was supposed to do. The 1861 framers seem to have believed that it was better to spell out restrictions upon their Confederate government instead of eliminating its implied powers altogether. It would have been too unsettling, and crippling, otherwise.
Some restrictions upon the Confederate government take the form of two-thirds votes requirements for designated actions (especially with respect to certain revenue bills and certain appropriations). Other restrictions limit the powers of Congress to interfere with elections in the States.
III.
Various features in the 1861 Constitution reflect a radically different approach to the government of the Country from that found in the 1787 Constitution. This may be seen in the controversy during the first half of the Nineteenth Century over whether tariffs should be used to promote domestic manufactures. Such promotion is forbidden by the new Constitution, which provides that no "duties or taxes on importations from foreign nations [shall] be laid to promote or foster any branch of industry." Also forbidden is the allocation of federal funds for "any internal improvements intended to facilitate commerce." Even the Post Office must be self-supporting. This indicates how far the suspicion of commerce and the fear of subsidies for special interests went.
The critical role of the States is emphasized in the 1861 Constitution. This shift in emphasis may be seen at the very beginning, with the Preamble announcing that this new Constitution is the deed of "We, the people of the Confederate States, each State act-[Page 750]ing in its sovereign and independent character . . . . " It is a Constitution which aims not at the "more perfect Union" sought in the 1787 Preamble, but at a "permanent federal government." It is also a Constitution which is to be amended by the States, with the Congress having merely a ministerial part to play. Another change from the old way is what is done with the Ninth and Tenth Amendments: "the people" there referred to become "the people of the several States." We are given to understand, again and again, that there is to be no recognition this time around of the people of the Country at large.
It is the States that matter, so much so that five out of the more than thirty American States in 1861 sufficed to form the new country¾whereas nine out of the original thirteen had been required in 1787. (Only seven States had declared themselves seceded by the time the Confederate Constitution was drafted.) These States, unlike under the 1787 Constitution, are permitted to interfere somewhat with movements between States; they can emit bills of credit; they can combine (without Congressional approval, it seems) to improve the navigation any river which "divides or flows through two or more States." Perhaps nothing indicates the enhanced status of the States under the 1861 Constitution more than the provision that "any judicial or other federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature [of that State]."
IV.
Intimately related to the enhanced status of the States under the Confederate Constitution is its heightened protection of slavery. If State sovereignty is attractive as a form of local government, one's power over slaves may carry local government a significant step closer to home.
The Confederate constitutional protection for slavery includes limitations placed upon emancipation. In addition, the new Congress is kept from interfering with the introduction of slavery into the territories of the Confederacy. The 1861 Constitution thus makes explicit provision for the position that had been taken four years earlier by the United States Supreme Court in the controversial Dred Scott Case.[152] One must wonder whether, by the 1861 Constitution's doing this, it is implicitly conceded that the ruling in [Page 751] Dred Scott was not required either by the Constitution of 1787 or by its Fifth Amendment.
On the other hand, the 1861 Constitution not only prohibits the international slave trade but even makes it a duty of Congress to suppress it. Is this done in such a way as to suggest that the power of suppression is not to be considered as an aspect of a broad commerce power, thereby protecting the domestic (including the "interstate") slave trade from any Congressional regulation?
The institution of slavery is recognized by the Confederate Constitution as vital to the new regime. So much is this so that the student of that constitution is obliged to ask whether the States in the Confederacy could on their own abolish slavery within their respective borders.[153] Whatever any State may do, it seems, the slave owner is entitled to move through or sojourn in every State in the Confederacy with his slaves.
V.
Several differences between the system of 1787 and that of 1861 should be emphasized. The Confederacy depends far more upon the States, far less on a national people (even in the South), than does the United States. Local government is made much more of, and so is property, especially property in slaves (which is, I have suggested, a peculiarly intensive form of local government). At the same time, the Confederacy is less open to commerce than the 1787 regime. Certainly, the new federal government is severely restricted as to what it may do to encourage manufactures and trade. At the heart of these differences may be quite different notions about what human nature is like.
Government itself is suspect in the 1861 Constitution; the further government is from local control, the more suspect it seems to be. This suspicion is accompanied by a sympathy for slavery as an institution. That kind of government is acceptable, despite its severity. All this means, in effect, that a general equality is sacrificed to the liberty of a privileged few, the major slaveholders.
Two paths lay before the American people in 1860. One path led back to the Articles of Confederation and considerable State sovereignty, perhaps to more State sovereignty than had ever existed in North America before 1787. Progress for the Confederacy is a dubious prospect, especially if it should depend on a concerted [Page 752] national effort. Abraham Lincoln could disparage the Confederate deference to local self-determination as an invitation to anarchy.
The other path that lay before the American people in 1860 led (by way of the Civil War and the Emancipation Proclamation) to the Thirteenth, Fourteenth, and Fifteenth Amendments with their abolition of slavery and their insistence upon a general equality, and all this at the expense of State sovereignty. The promise of the Declaration of Independence with respect to the elimination of tyranny was thereby reaffirmed.
This second path, in taking its bearings by the Declaration of Independence, assumes that the United States is older than the States. The Country is seen as having begun in 1776 (if not in 1774), not in 1787 or in 1789. Lincoln's "four score and seven years" at Gettysburg looks back to the Declaration as the founding constitutional document for Americans.
To regard the Declaration of Independence as the foundation of the American constitutional system is to ratify the grand opinion about human nature enshrined there. It is an opinion very much open to natural-right teachings, so much so that the Declaration of Independence can speak of "the Laws of Nature and of Nature's God." Somewhat more Biblical, and hence perhaps more conventionally pious, may be the Confederate Constitution, which adds to its Preamble not only an insistence upon "each State acting in its sovereign and independent character," but also an invocation of "the favor and guidance of Almighty God," something which the Constitution of 1787 is silent about.
Is it not true down to our day that an openness to State sovereignty and an openness to Biblical religion tend to go together? Does a reverence for the Country at large, as distinguished from a love of one's own, tend to replace piety as ordinarily understood? In this and other ways we may have much to learn from the Confederate Constitution of 1861.
VI.
Among the things to consider in that 1861 Constitution, for what they may teach (and perhaps warn) us about constitutional reforms in our day, are various experiments in government.
It is provided that "Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department." It is also provided that the President is to have a six-year term and that he is not eligible to succeed [Page 753] himself. It is provided as well that the President should be able to disapprove of particular items in any appropriations bill passed by Congress. Perhaps related to this is the insistence that each law should "relate to but one subject, and that shall be expressed in the title."[154]
Each of these experiments has its advocates today. Other changes of this character in the 1861 Constitution are less interesting, being merely efforts to clarify points in the 1787 Constitution. These include provisions with respect to recess appointments, the acquisition of new territories (the Louisiana Purchase problem?), and the shift from "cannot be convened" to "if not in session."
Still other changes reflect changes in North America, as may be seen in raising the minimum electorate for a member of the House of Representatives from thirty thousand to fifty thousand. But it is odd that the twenty dollar figure is left undisturbed as the jurisdictional amount for a right to trial by jury in suits at common law.
VII.
Any proposed reforms of the Constitution of 1787 should take into account both the purposes of existing provisions and the likely consequences of any changes. An understanding of the Constitution as a whole is obviously required if changes are to be prudent.
How well, we must wonder, did the Confederate framers of 1861 understand the Constitution of 1787? They made it explicit that the two-thirds required to expel a member of a House of Congress is "two-thirds of the whole number." But this is implicit in the original Constitution¾and making this change here may have had the unintended effect of changing the meaning of other passages where the whole number of members had been similarly implied.
Another departure from the constitutional arrangement which the Confederate framers inherited may be seen in what they did with Amendments One through Eight of the Bill of Rights appended since 1791 to the United States Constitution. All of these Amendments were placed in Article I, Section 9 of the Confederate Constitution, that section in which various restraints upon Congress are found. The Ninth and Tenth Amendments were placed in Article IV.
It is instructive that virtually no change is made in the wording of the first eight Amendments upon their incorporation into the [Page 754] Confederate Constitution. Does this reflect the dependence of those and like rights upon historic associations and traditional formulations? This reminds us of the further question whether it had ever been necessary to spell out in 1787-1791 the rights now found in the Bill of Rights.
Both history and tradition ultimately depend for their authority upon the natural tendency of human beings to identify the old with the good. This in turn should remind us of the primacy of the natural--and of that which is by nature right. Is it not here that the Confederate Constitution, with its unfortunate deference to slavery, is most vulnerable?
VIII.
We have seen in these Lectures what silences and implications may mean in a constitutional document. An instance of a revealing, indeed a most expressive, silence is the elimination from the 1861 Constitution of both of the references to the general welfare found in the 1787 Constitution (in the Preamble and in Article I, Section 8). Does not that elimination concede that that phrase, as found in the 1787 Constitution, is quite potent? Should not this be taken into account by those today who make much of "original intent" in the mistaken expectation that this means a weaker national government?
Still another revealing instance of silence is the compatibility assumed between, on the one hand, the permanent system of slavery evidently envisioned by the Confederate Constitution and, on the other hand, the reaffirmation in that Constitution of the Bill of Rights, the Republican Form of Government Guarantee, and the invocation of the Blessings of Liberty. Is not the assumption of such compatibility indicative of fatal flaws in the Confederate Constitution? Does not all this point up, in turn, the extent to which the accommodations to slavery in the Constitution of 1787 were meant to be temporary, a reluctant compromise that would permit the United States so to develop as to make slavery impossible in North America? The Confederate attempt at Secession in 1860-1865 testifies to their opinion that the national endeavor to eliminate slavery was dangerously far advanced.
IX.
The significance of silences in a Constitution reminds us also of the importance of words. The changes in terms used in the Confederate Constitution are revealing. [Page 755]
The framers of 1861 were careful to change all references in the 1787 Constitution that suggested the existence of a country prior to and superior in decisive respects to the States. Thus Union routinely became Confederation and United States became Confederate States.[155]
The most revealing changes made by the 1861 framers had to do with slavery. We have noticed the protections extended to slavery, far more than had been available in the 1787 Constitution. But even more significant, perhaps, is the insistence in 1861 upon changing the 1787 usage ("all other persons") to "all slaves." The Framers of 1787 had steadfastly refused to use in their Constitution the terms slave and slavery. This was explained, not only by Lincoln in the 1850s but also by various of the Framers in the 1780s, as a reflection of the confident hope that slavery eventually would be eliminated. The awkward circumlocutions in 1787 when slavery was referred to exposed the dubiousness of the institution being accommodated, something that was recognized in the 1780s as much by leading Southerners as by Northerners.
Southern statesmen could, in the late Eighteenth Century, routinely speak of slavery as a necessary evil, an institution that they could hope was in the course of ultimate extinction. It was much later (well into the Nineteenth Century) before their successors were moved, in their desperation, to speak routinely of slavery as a positive good. So desperate did they become that they felt obliged by 1861 to treat slavery as something they could not live without, when in fact it had become something that they as decent people could not really live with, especially since the humanity of the [Page 756] slaves had become all too evident once they had adopted the English language and American ways (including Christianity). The difficulties they saw in any program of wholesale emancipation remain to a considerable extent in American race relations down to this day.
Thus, one particularly revealing difference between the Constitution of the United States and the Constitution of the Confederate States is that one Constitution never used the terms slave(s), slavery, and slaveholding until the time had come to abolish the institution while the other Constitution freely (even shamelessly) used these terms from its outset.[156]
Does not what was done in 1861 stand as a dramatic tribute to what was done and was intended to be done, by Southerners and Northerners alike, in crafting as they did the Constitution of 1787?
11. THE EMANCIPATION PROCLAMATION OF 1862-1863 [157]
I.
I suggested in my last Lecture that the greatest tribute ever paid to the Constitution of 1787 since the Founding Period may have been in 1861 by the framers of the Constitution of the Confederate States of America. Another great tribute¾but one that is not perverse in some of its implications¾is the measured response by Abraham Lincoln to the Great Rebellion. His Emancipation Proclamation is quite revealing of his constitutional understanding and political judgment, even as it opens the way to political developments and constitutional amendments for more than a century thereafter.
There are, in responses to men singled out for our attention as Lincoln is, two tendencies among articulate citizens. One tendency is virtually to deify them as people somehow outside and above the Constitution. The other tendency is to denigrate them, even (as in [Page 757] the case of Lincoln) to dismiss them as "racists" and the like. Thus, one writer observed:
However admirable the character of the American Constitution, it [is not] the most admirable expression of the regime. The Constitution is the highest American thing, only if one tries to understand the high in the light of the low. It is high because men are not angels, and because we do not have angels to govern us. Its strength lies in its ability to connect the interest of the man with the duty of the place. But the Constitution, in deference to man's nonangelic nature, made certain compromises with slavery. And partly because of those compromises, it dissolved in the presence of a great crisis. The man¾or the character of the man¾who bore the nation through that crisis, seem[s] to me . . . the highest thing in the American regime.[158]
Thus, also, another writer (in the Chicago Tribune, taking issue with an editorial therein on President Lincoln) observed:
A close look at Lincoln, the Civil War, slavery, and the political, social, and economic movements and moral climate of that era convinces me that Lincoln should not be credited with freeing the slaves. Rather he was clearly forced by his critics and the urgencies of war to end chattel slavery or go down in defeat. No thinking person objects to Lincoln's adept use of the art of compromise. What I, as a black descendant of slaves, cannot escape is the fact that he also used that talent to delay as long as he could the recognition of a black human as something other than a piece of property.
This columnist added:
His insistence that a slave was a property first and a person second resulted in the great Lincoln plan: the freeing of slaves thru (1) Southern state initiative (slavery forever); (2) government payment for slaves to be freed; (3) gradual emancipation (to be complete around the year 1900); (4) government aid to slave states suffering from loss of slaves (more sympathy for the criminal than for the victim); and (5) colonization of blacks out of the United States. To those unsung heroes who didn't permit Lincoln to 'push thru his program,' this one descendant of slaves belatedly thanks you.[159] [Page 758]
A defense of Lincoln (by the Tribune, referred to in the column just quoted) had argued that Lincoln's attitudes and policies should not be judged by "today's standards." [160] Such a defense, however, misses the point. Does it not imply that we know better than Lincoln did what should have been done, that our consciences or our understanding or our feelings are somehow superior to his?
It is not only we who believe ourselves in a superior position. Many, perhaps most, of Lincoln's fellow citizens believed at one time or another that their judgments and consciences were better than his. (At times, all they would give him credit for was a rough honesty, or sincerity.) Even his Secretary of State could observe in 1862 of Lincoln's policy: "[W]e show our sympathy with slavery by emancipating slaves where we cannot reach them, and holding them in bondage where we can set them free."[161]
But a more prudent assessment of that policy than may be found in most of the writings of either our contemporaries or Lincoln's is suggested by an oration delivered by Frederick Douglass on April 14, 1876, "on the occasion of the unveiling of the Freedmen's Monument [in Washington, D.C.] in memory of Abraham Lincoln." The distinguished former slave argued:
I have said that President Lincoln was a white man, and shared the prejudices common to his countrymen toward the colored race. Looking back to his times and to the condition of his country, we are compelled to admit that this unfriendly feeling on his part may be safely set down as one element of his wonderful success in organizing the loyal American people for the tremendous conflict before them, and bringing them safely through that conflict. His great mission was to accomplish two things: first, to save his country from dismemberment and ruin; and, second, to free his country from the great crime of slavery. To do one or the other, or both, he must have the earnest sympathy and the powerful co-operation of his loyal fellow- countrymen. Without this primary and essential condition to success his efforts must have been vain and utterly fruitless. Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible. Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a [Page 759] sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined. Though Mr. Lincoln shared the prejudices of his white fellow-countrymen against the negro, it is hardly necessary to say that in his heart of hearts he loathed and hated slavery."[162]
Douglass quotes at this point Lincoln's letter of April 4, 1864, "I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel."[163] Whether Lincoln was, in fact, "prejudiced" would depend, first, on what one means by this term; second, on what all the causes were of African slavery; and, third, on what the effects were on the slaves of their bondage.
Earlier in his oration, Douglass made an observation about his immediate response to the Emancipation Proclamation, an observation that can provide our point of departure both in considering that Presidential decree and in assessing Lincoln's political judgment:
Can any colored man, or any white man friendly to the freedom of all men, ever forget the night which followed the first day of January, 1863, when the world was to see if Abraham Lincoln would prove to be as good as his word [pledged the preceding September 22]? I shall never forget that memorable night, when in a distant city I waited and watched at a public meeting, with three thousand others not less anxious than myself, for the word of deliverance which we have heard read today. Nor shall I ever forget the outbursts of joy and thanksgiving that rent the air when the lighting [the telegraph] brought to us the emancipation proclamation. In that happy hour we forget all delay, and forgot all tardiness, forgot that the President had bribed the rebels to lay down their arms by a promise to withhold the bolt which would smite the slave-system with destruction; and we were thenceforward willing to allow the President all the latitude of time, phraseology, and every honorable device that statesmanship might require for the achievement of a great and beneficent measure of liberty and progress.[164]
II.
It is the statesmanship of Lincoln, as reflected in the Emancipation Proclamation, with which we will be concerned in this Lecture, [Page 760] thereby preparing the way for proper consideration of the Thirteenth, Fourteenth, and Fifteenth Amendments in order to understand what happened in 1862-1863, and why we must remind ourselves of the circumstances in which the proclamation was issued. The first part, the Preliminary Proclamation, was issued September 22, 1862; the second part, the Final Proclamation, was issued January 1, 1863.
The general setting was, of course, the Civil War, that war the prosecution of which President Lincoln understood as primarily an effort, in accordance with his constitutional duty, to save the Union from dismemberment. Thus, he observed (in a statement of August 22, 1862, just one month before his issuance of the Preliminary Proclamation¾a statement which continues to anger his antislavery critics down to our day):
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.[165]
Lincoln concluded this statement¾an open letter to Horace Greeley--with the assurance, "I intend no modification of my oftexpressed personal wish that all men every where could be free."[166] It should be noticed that Lincoln's flexibility, in his effort to save the Union, did not include a willingness to enslave anyone for that end. He observed on December 6, 1864:
I repeat the declaration made a year ago, 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 per-[Page 761]son who is free by the terms of that proclamation, or by any of the Acts of Congress." If the people should, by whatever mode or means, make it an Executive duty to re- enslave such persons, another, and not I, must be their instrument to perform it.[167]
This suggests the limits of what Lincoln was willing to do or say in the service of "statesmanship."
That is, he was not willing to enslave or to re-enslave anyone, even though he was willing to live with slavery. But we should be clear what "living with slavery" meant for him. It meant that the Union would be preserved, a Union in which slavery would be permitted to continue in those Southern States where it happened to exist at the time he became President. He did not mean to touch it there but neither did he mean to let it expand into any new territory. Thus, he was a "Free-Soil Man," not an "Abolitionist." But, he also believed, if slavery could be contained, it would wither away¾and in such a way as to leave both former slaves and former masters in the best possible condition for living with one another as free men. In the meantime, a South which continued to remain part of the Union could not help but be moderated by Northern opinion and Federal power in what it did to its slaves, both at home and abroad.
The abolitionists insisted, "No union with slaveholders." It has been noticed that "[t]he extreme abolitionists, in the supposed purity of their principles, would have abandoned the four million slaves to their fate."[168] The alternative for them, of preserving the Union but destroying slavery, depended on a successful war effort¾and that, it was generally believed, depended on a united effort on the part of the diverse factions loyal to the Union. Among those factions were not only the abolitionists¾Lincoln figured, no doubt, that they had nowhere else to go--but also Northerners who did not have strong opinions about slavery (but who did care about the Constitution and the Union) and Middle States men who retained both slaves and loyalty to the Constitution. These men of [Page 762] the Middle States were not, despite their slavery institutions, simply bad men; nor for that matter were the Southerners. Lincoln recognized that slavery was essentially a national affliction, that (for the most part) those who were burdened by it would have long since gotten rid of it if they could have seen a way to do so¾a way both economically and socially feasible.
In this respect, Lincoln appreciated the long past of the Country and looked ahead to an even longer future. He recognized why one section of the Country was slave and why another was free. He had long hoped so to contain and thereby begin to ease out slavery as to make it possible for the two races (both emancipated from the curse of slavery) to live thereafter, whether together or separated, in the best possible way. What was called for, he saw, was neither sentimental indifference nor bitter recrimination. He was obliged, in any event, so to conduct the war as not to lose the support of the many men in both the Northern and the Middle States who were, at best, indifferent about slavery. He believed that the goal for which the maximum support could be gathered was that of preserving the Union. Thus, "[f]ighting the war was always secondary to keeping alive the political coalition willing to fight the war."[169]
Once great sacrifices had been made, more could be ventured. Once, that is, considerable Northern and Middle States blood had been shed on behalf of the Union, it was possible to direct the attention of the Country to slavery itself. "Slavery was what the rebel states were fighting for, and slavery enabled them to fight for slavery."[170] It had long been recognized by the laws of war that one could deprive an enemy of whatever property helped keep him in the field. One could even appropriate such property for one's own use. The slaves were for the South useful, perhaps even essential, property. It was on this basis that Lincoln could then mobilize Union men to move against Southern slavery, to ally themselves (in effect) with the freedom-seeking slaves held by the rebels.
The Emancipation Proclamation was, thus, a military realization of a prophecy Lincoln had made in his famous "House Divided" speech of June 16, 1858:
"A house divided against itself cannot stand." I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved¾I do not expect the house to fall¾but I do expect it will cease to be divided. It will [Page 763] become all one thing or all the other. 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 new¾North as well as South.[171]
III.
Much of what I have said thus far should be generally familiar. Too much originality in such matters would be suspect. No doubt some may be inclined to question the assessment I have been tacitly making about Lincoln's judgment. That assessment is, to state it plainly, that Lincoln seems most impressive in his sure-footedness: he never seemed to err in the major moves he made once he assumed the Presidency. The mistakes he did make were due not to faulty judgment but to mistaken information, and in circumstances where he had to rely on what was told him. Throughout the war, he was remarkably adept, knowing both what he wanted and what he was doing. He was, in short, a model of prudential judgment, or at least as fine a practitioner of such judgment as we have had in government.
I can best illustrate what I mean¾what prudence means in action, and especially in war circumstances (and a civil war, at that, where passions run particularly deep)¾by examining in some detail the terms of the two documents which comprise the Emancipation Proclamation. By so doing, we can see as well what the Civil War meant and how it progressed, for the history of that war seems distilled in these documents. Perhaps even more important, we can see how first-class practical reason works, the kind of reason evident in the Constitution of 1787.
The Emancipation Proclamation, unlike the Constitution and the Declaration of Independence, was in a sense the work of one man¾and hence of one mind. It was carefully thought out by Lincoln, with only a few suggestions by his Cabinet added after he revealed to them what he proposed to do. It is, we will see, both bold in its conception and disciplined in its execution, the lawyer's art in its perfection. It is, I suggest, more American than either the Declaration or the Constitution, in that its author had been fully shaped by the regime established after 1776.[172] [Page 764]
There is, in our effort to grasp what Lincoln did, both a challenge and an opportunity. There is the opportunity of fully asserting ourselves as citizens, in that we can, at least for the moment, walk with someone who thought as deeply as any American statesman has about the character, aspirations, and deficiencies of our regime. There is also a challenge in that we are obliged to strive for a degree of seriousness to which we are not accustomed. We have become accustomed in our discussions of political things to the exposes and the superficialities of journalism and to the abnormalities and irrationalities of psychology¾so much so that it is difficult to avoid sentimentality and sensationalism. We have to make an effort, then, to understand the Emancipation Proclamation. But then, the Proclamation was issued for the likes of us.
Lincoln challenges us to think; he challenges us to reconstruct the thinking he devoted to the problems he faced. We know that he devoted many hours to the text of the Emancipation Proclamation, especially the preliminary statement of September 22, 1862. If we should be able to work out what he took into account, and why, we can then be assured that we begin to understand the Civil War as an eminently political man could and did.
To take seriously a statesman's carefully expressed thought is, after all, the best tribute we can pay to him. Such an attempt at the most noble imitation is worthy of our greatest efforts if we are to understand who we are and what we aspire to.
IV.
It is said that Lincoln issued no statement or argument to support the Emancipation Proclamation. "He let the paper go forth for whatever it might do . . . . " [173] But this is not to say that he never discussed it, for in a preparatory Cabinet meeting, he "proceeded to read his Emancipation Proclamation, making remarks on the several parts as he went on, and showing that he had fully considered the whole subject, in all the lights under which it has been presented to him." The discussion of the Proclamation on that occasion, we are told, included "the constitutional question, the war power, the expediency, and the effect of the movement." [174]
It is that discussion in Lincoln's Cabinet which we can, in effect, [Page 765] recreate if we are so minded. We turn first to an examination of the Preliminary Proclamation of September 22, 1862.
i.
I, Abraham Lincoln, President of the United States of America, and Commander-in-chief of the Army and Navy thereof, do hereby proclaim and declare that hereafter, as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States, and each of the states, and the people thereof, in which states that relation is, or may be suspended, or disturbed.
This is the first of Lincoln's proclamations as President that opens with his name and titles.[175] It is as if he intends to assert from the outset that this statement is especially his doing, that it emanates from his very being¾and, insofar as he is a thinking being and this is well thought out, that is so.
This is only the second of his proclamations in which his title as Commander- in-Chief is invoked. Such invocation was not customary in Presidential proclamations.[176] We notice in passing the precision in his language, "proclaim and declare that hereafter, as heretofore." Such precision encourages us to expect that what he says throughout may profitably be read with care.
The insistence at the outset upon his status as Commander-in-Chief anticipates his insistence throughout upon this action as a legitimate war measure. No doubt he thought then what he was to say a year later (August 26, 1863) to a critic of the Proclamation:
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 there¾has there ever been¾any 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 bel- [Page 766] ligerents 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 noncombatants, male and female.[177]
We see in this opening paragraph of the Preliminary Proclamation an insistence as well upon the purpose of this war, that of restoring the constitutional relations among the States. An antislavery crusade would have been far more questionable than an effort to save the Union¾and that was, in many quarters, questionable enough. (We should remember that even today more citizens are in favor of "law and order" than are in favor of "racial justice" or "military justice" or "class justice.") For most men, justice is what the law prescribes: they cannot be depended on to habitually accept much more than that or even to want much more than that. Would "much more than that" be for them an unwelcome freedom? Does not Lincoln's approach recognize the limits of public opinion? Does it not recognize that respect for law is more "knowable" than respect for justice?
But, one is obliged to ask, are there not various kinds of constitutions (or master-laws)? Should this one have been established in the first place? That is, should the bargain have been made in the first place, that "constitutional relation" which permitted the States to retain jurisdiction over slaves? Was that bargain so immoral that it should never have been expected to hold? Still, what would have happened if the Southern States had been allowed to depart in peace, whether in 1787 or 1861? Had not the Union by 1861 served better the "Free States," permitting them to grow to a stronger position in relation to the "Slave States" than they had been in the beginning?
Granted that the Union is to be preserved, upon what terms can it best be defended? Cannot people more readily be led to see that their interest is served by a constitutional regime (by orderly government, a continent-wide market, an absence of threatening neighbors) than it is served by a free regime (especially when the freedom yet to be fought for is that of others, not obviously their own)? On the other hand, once the crusade for freedom is launched, it is much more difficult to control: passions are much more likely to rage unchecked, whereas constitutionalism has a sense of restraint built right into it. [178] [Page 767]
Besides, blatantly to attack slavery is to attack property rights and perhaps even the principle of property. Where is the stopping point once one starts down that road? Today, slaveholders; tomorrow, the wealthy? And the day after, anyone of talent or distinction? Is it not sensed by men of affairs that property does depend on the arbitrary, on the accidental, on peculiarly local circumstances? Does it not depend on the bargains which happen to be made from time to time? Lincoln must insist upon the object of restoration of the constitutional relation as critical, especially in light of what he is about to do. Cannot he effectively do what he is about to do partly because he has insisted heretofore on the proper constitutional relation, on constitutional technicalities and niceties? [179] Does one adhere scrupulously to a constitution and the law (as generally understood) in order to be able to step above them at the propitious moment, thereby leading one's people to a higher or more solid constitutional plateau than they are yet accustomed to?
We notice the emphasis on restoration. Things will go back to what they were¾except for the opinion which some had held that secession was proper. But full restoration will be impossible once that particular opinion is disavowed, for the status of slavery will never be the same again. Still, the closest the South can come to having the original constitutional relation restored is by quickly acceding to the terms of the Preliminary Proclamation, thereby not "permitting" Lincoln to declare any slaves emancipated.
We should notice as well that it is not only the South which threatens the constitutional regime. Thaddeus Stevens, one of the radical abolitionist leaders in Congress, had proclaimed that there was no longer any Constitution and reported that he was weary of hearing the "never-ending gabble about the sacredness of the Constitution."[180]
Finally, we notice that the "constitutional relation" has not been destroyed; rather, it has been "suspended, or disturbed" in certain States¾and it is there that restoration is called for. Self-preservation calls for such restoration¾that self-preservation which we shall later on see to be so critical a guide for human action. [Page 768]
Much more can be said about this first paragraph. But we must pass on to the subsequent paragraphs, about which far less than this must be said if we are to canvass the entire document on this occasion.
ii.
That it is my purpose, upon the next meeting of Congress to again recommend the adoption of a practical measure tendering pecuniary aid to the free acceptance or rejection of all slave-states, so called, the people whereof may not then be in rebellion against the United States, and which states, may then have voluntarily adopted, or thereafter may voluntarily adopt, immediate, or gradual abolishment of slavery within their respective limits; and that the effort to colonize persons of African descent, with their consent, upon this continent, or elsewhere, with the previously obtained consent of the Governments existing there, will be continued.
Having laid in his opening paragraph the groundwork¾that is, "We are determined to restore the authoritative constitutional relation"¾Lincoln can then indicate what would be an improvement consistent with such restored constitutional relation: compensated emancipation by non-rebellious slaveholders. This offer is extended, it seems, to all Slave States, "so called," those now in rebellion and those that had never been in rebellion against the United States. It was unlikely that the rebellious States would be won over, but what about the other Slave States, the loyal Middle States? They would not be affected by the impending proclamation, but was there not for them the suggestion here, as there had been the preceding March, that they would do better to sell their slaves now to the United States than to be deprived of them later?
Is not at least a useful appearance of fairness achieved by Lincoln's offer to pay for what he considered himself empowered, if not even obliged, to take? Does not this reinforce the Lincolnian position that it is not the slaveholder, but slavery, which is the critical problem here, that it is not punishment or political and social reform but union which he is after? If it is to be a Union in which the traditional role of the States is respected, it is up to the States "voluntarily" to adopt a program of abolishment of slavery.
Does he use "abolishment" rather than "abolition" in order to soften what he is asking for? That is, abolition may still have been seen as far too radical, even by many anti-slavery Northerners. Besides, Lincoln cannot abolish the institutions of slavery in any State: he can only emancipate certain people in certain places at a certain time. Abolition requires a more comprehensive change, of [Page 769] a permanent legislative character, than he is constitutionally capable of making on his own authority.
The reference to "gradual abolishment" recognizes not only concerns among the public at large about the danger of precipitate action but those of Lincoln as well. What was to be done with the millions of people "of African descent" if they should be cut loose from their accustomed moorings in this Country? Would they thereafter be exploited even more than they had been? Would they constitute a danger to the community? Could they be expected to know what to do with themselves? Was time needed to effect a proper transition? Or, failing that, should their removal from the Country be planned, for their own good as well as that of the Caucasians? Did Lincoln have to explore alternatives in this way, if only to indicate that he understood what many of his countrymen, North and South, were concerned about? By so indicating, did he not make it more likely that the public would eventually accept whatever he decided upon and offered as the least objectionable way of achieving the desired end? If he had failed to appreciate alternative positions, he would not have been trusted the way he came to be.
But to "appreciate" is not to agree: it is rather to understand why another should make the mistakes he is making. Slavery was, to say the least, a mistake, not only a moral mistake but (perhaps even more important for the future of the regime) a constitutional mistake. Was not our constitutionalism, with its rule of law and its dependence on an essential equality, bound eventually to undermine slavery or to be undermined by it? Was not slavery somehow hostile to the principles of the American regime? The Slave States depended on the law-abidingness of the Free States¾on the respect of Free States for constitutional arrangements¾in order to be protected in an institution that was, in a sense, lawless.
Finally, we notice the double emphasis on the necessity for consent: (1) the consent of those to be colonized, and (2) the consent of those governments that would receive the colonists. This, along with the deference to voluntariness on the part of the Slave States, points up the vulnerability of slavery in any regime where consent of the governed is made as much of as it is in ours.[181] [Page 770]
iii.
That on the first day of January in the year of our Lord, one thousand eight hundred and sixty-three, all persons held as slaves within any state, or designated part of a state, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
One offer has just been made, that of compensated emancipation. Now comes another: "You can keep your slaves, if you wish, so long as you return to your allegiance." This once again emphasizes that it is the Union which Lincoln seeks to preserve, not Slavery which he seeks to destroy. One hundred days are provided rebellious slaveholders in which to take advantage of this offer. Some of the North still needed to be assured that Southern property and the American Constitution were being dealt with fairly.
"[A]ll persons held as slaves": does not this formulation imply that they are not truly slaves? One who is called a slave may be no more than someone held as a slave, perhaps as a prisoner of war. May he merely be regarded as a slave? Is not slavery as practiced in North America at that time only conventional slavery, with its convention arbitrarily guided by color differences and based primarily on force? Yet, even if slavery originated in injustice, it may have compounded the original injustice to have freed all slaves at once or to have freed them one way rather than another.
Notice that Lincoln can command only the response of the "executive government of the United States." The Courts and Congress act independently. We can see in the second paragraph of the Preliminary Proclamation that it is Congress, not the Executive, that can provide the "pecuniary aid" Lincoln speaks of there.
Notice also that freedom comes in two stages, so to speak: recognized freedom and actual freedom. Recognized freedom is what comes to someone from the sayings and doings of others; actual freedom depends more on one's own efforts. It should go without saying that not everyone who is recognized to be free is actually free. Men who have lived for generations in slavery may need generations of purgation and training before they become actually free¾as the Israelites' forty years in the desert suggest. [Page 771]
iv.
That the executive will, on the first day of January aforesaid, by proclamation, designate the States, and parts of states, if any, in which the people thereof respectively, shall then be in rebellion against the United States; and the fact that any state, or the people thereof shall, on that day be, in good faith represented in the Congress of the United States, by members chosen thereto, at elections wherein a majority of the qualified voters of such state shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such state and the people thereof, are not then in rebellion against the United States.
A promise is made as to what Lincoln will do on January 1st: designate the States, or parts of States, if any, in which the people thereof shall then be in rebellion. Is not that to be the principal purpose of that January 1st proclamation? What follows from such designation will have already been indicated in this September 22nd proclamation. Little more needs to be added on January 1st: the emancipation then will even have the effect of a promise fulfilled. That revolutionary step will be living up to a bargain already struck. There is about this sequence a psychological masterstroke.
By thus pointing ahead Lincoln succeeded in shifting attention to an occasion which was itself "expected" and even "demanded" by a kind of contract. (The designation required for that day was, for the most part, perfunctory: most of the States designated could have been designated by anyone; as we shall see, they in effect designated themselves.) Lincoln succeeded so well in shifting attention to the expected measure (on January 1) from the extraordinary measure (of September 22) that the January 1st statement (which is, except for its concluding language, more pedestrian) has become the one that is remembered and reproduced in anthologies, not the earlier September 22nd statement that had truly been decisive.
Notice Lincoln's precise use of "if any"¾"the States, and parts of states, if any." After all, an offer has been made; it must not be assumed in advance that it will be rejected by anyone. To do so would be virtually to admit that it is a mere form. It would, besides, deny the rationality and hence the humanity of those in rebellion: they must be considered as, in principle, open to argument. They, too, are American citizens.
Notice, also, that the decisive indication that a State is not in rebellion is its good-faith representation in the Congress. He says, [Page 772] in effect, "If you wish to avoid the effects of a military measure, exercise your rights as free men; send men of your choice to Congress; return to your seats in the national legislature and resume the duty and power you have always had there to help run the country." Does not this approach acknowledge the fundamentally republican character of the Country, a character to which the military power is ultimately subservient? We need not concern ourselves here with whether Congress would have immediately accepted such representatives from the States which had been in rebellion. It suffices to notice that republican standards were apparently relied upon even in those trying times.
Notice, finally, that Lincoln in effect cedes to rebellious States the power to decide themselves whether they are again to be in good standing. "[I]n the absence of strong countervailing testimony," their recourse to Congressional elections will "be deemed conclusive evidence" that they "are not then in rebellion against the United States." Is there not something generous about this also? Indeed, does not generosity pervade the Proclamation, the generosity of a truly magnanimous man who can at the same time be shrewd and knowing about the usefulness of generosity?
v.
That attention is hereby called to an act of Congress entitled "An act to make an additional Article of War" approved March 13, 1862, and which act is in the words and figure following:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war for the government of the army of the United States, and shall be obeyed and observed as such:
Article__. All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court- martial of violating this article shall be dismissed from the service.
Sec. 2. And be it further enacted, That this act shall take effect from and after its passage.
Also [attention is hereby called] to the ninth and tenth sections of an act entitled "An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate property of rebels, and for [Page 773] other purposes," approved July 17, 1862, and which sections are in the words and figures following:
Sec. 9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such persons found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude and not again held as slaves.
Sec. 10. And be it further enacted, That no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offence against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service.
And I do hereby enjoin upon and order all persons engaged in the military and naval service of the United States to observe, obey, and enforce, within their respective spheres of service, the act, and sections above recited.[182]
This passage draws attention to two acts of Congress: one prohibits military officers from returning certain fugitive slaves, and the other (in the sections quoted from it) declares certain fugitive slaves free and places restrictions on the return of certain other fugitive slaves to their masters. The passage thereafter orders "all persons engaged in the military and naval service of the United States to observe, obey, and enforce, within their respective spheres of service, the act, and sections above recited."
What is all this doing in here? Perhaps it is partly to suggest that what Lincoln is now doing is not without Congressional prece-[Page 774]dent. This passage may address itself to the more conservative Unionists. They are assured that all this is not simply executive usurpation on the President's part. Perhaps, also, it is partly to counter the hostility of abolitionists who would not like an emancipation decree framed in so qualified and so partial a manner as this one is. Such single-minded critics are reminded that at least the hated Fugitive Slave Clause of the 1787 Constitution has been in effect suspended.
In addition, there are other hints. The first Act Lincoln calls attention to is reproduced in its entirety, including the superfluous enacting clause (the title of the Act, also given, would have sufficed) and the "immediate effect" clause. But only two sections of the second Act are called to our attention, in marked (and intended?) contrast to what was done with the first Act. Does Lincoln thereby tacitly repudiate the other sections of the second Act? We cannot, on this occasion, explore this question; it suffices to notice that several of the sections of the second Act which he does not mention here are quite harsh, authorizing death sentences and comprehensive confiscation of all property. That harsh spirit is against what he is interested in establishing in the Proclamation: property in slaves is to be "confiscated" so to speak; but, after all, free men will thereby come into being.
The emphasis here is on fugitive slaves. Does not this suggest who may be able to take advantage at once of the Proclamation--those who flee from rebel territory? Is not an implicit invitation issued? This anticipates and to some extent deals with the complaint that the Proclamation emancipates only where the Union army is not.
Finally, we cannot help but notice¾are we intended to notice?¾that the language of Congress is less precise, less carefully thought out, than that of Lincoln. Does this show the reader that Lincoln is truly more worthy of being taken seriously?
vi.
And the executive will in due time recommend that all citizens of the United States who shall have remained loyal thereto throughout the rebellion, shall (upon the restoration of the constitutional relation between the United States, and their respective states, and people, if that relation shall have been suspended or disturbed) be compensated for all losses by acts of the United States, including the loss of slaves.
Once again, we see that the demands of war are not to be permitted [Page 775] to obscure permanently either the desire or the duty to see justice done. Certainly, loyalty must be recognized and compensated. And, it has to be said, the United States should recognize that there has existed up to now a legitimate property interest in slaves which must still be taken account of. Does this remark (the closing one among the substantive paragraphs of the Preliminary Proclamation) appeal to the apprehensive Middle States Unionists (just as the preceding passage incorporating the Acts of Congress appealed in large part to impatient Abolitionists)? Do we once again see that Lincoln must keep quite divergent, but vitally necessary, horses yoked together if the war chariot is to advance?
vii.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.
This is the standard testamentary statement for such proclamations. We will return to it at the end of the Final Proclamation.
viii.
Done at the City of Washington, this twenty second day of September, in the year of our Lord, one thousand eight hundred and sixty two, and of the Independence of the United States, the eighty seventh.
The eighty-seventh year hearkens back to 1776 and the Declaration of Independence. It is that "eighty-seventh" which Lincoln will transform into "four score and seven" when he speaks in November of 1863 at Gettysburg.
Why September 22nd? Lincoln had planned to issue this Preliminary Proclamation some weeks earlier (in fact, in July). But he had been dissuaded by Secretary Seward's argument that he should at least wait until the Union forces won another victory rather than make the proclamation seem an act of desperation¾for it had been a time of one defeat after another. Then there came the victory of Antietam, in the middle of September 1862¾and a few days later, the Emancipation Proclamation.[183]
Did Lincoln choose an interval of one hundred days so that the final proclamation would fall on New Year's Day, a day of rebirth and rededication? [Page 776]
ix.
There is, in the handwritten original of the Preliminary Proclamation of September 22, 1862, the repetition of "sixty two," in this fashion, "in the year of our Lord, one thousand, eight hundred and sixty two, and sixty two, and of the Independence of the United States the eighty seventh." This passage is in the hands of a clerk.[184]
Here, for the first time in this commentary upon the Emancipation Proclamation, I move from what Lincoln thought and intended, to what may have been "unconscious" (and hence "inspired"?). This inadvertent repetition by a clerk of "sixty two" suggests that he, at least, made much of the date¾as if to emphasize, "It is late 1862, not early 1861. We loyalists have tried for a year and a half to put down this dreadful rebellion with conventional measures. We can now proceed in good faith to a measure which we have had to be cautious in using, not only because it challenges longstanding constitutional arrangements (after all, it is a constitution we are defending) but also because it conforms to and gratifies the deepest desires of those of us who have always hated slavery. It is 1862!"
I must leave further poetic probings of the unconscious (or of the providential?) to others.
We turn now to the Final Proclamation of January 1, 1863. Much of what might be said about the parts of this proclamation has already been said in my review of the Preliminary Proclamation. We can be brief.
x.
Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:
That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, [Page 777] and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.
A solemn version of the date of the Preliminary Proclamation is given, that version used in the final paragraph of that proclamation. We recall that when the dates were given for Acts of Congress in that first proclamation, simpler versions of their dates were given (that is "March 13, 1862," "July 17, 1862"). Is a proclamation somehow of greater dignity than an Act of Congress? Does the Presidency, properly employed, have a greater dignity than the Congress? Is this one reason why a Presidential proclamation about Southern slaves means more, and has a greater effect, than Congressional enactments? Is the Commander-in-Chief, in time of war, somehow the decisive ruler of a country, especially when the war is a civil war¾for that makes war comprehensive?
These questions lead us to notice that there is nothing said about Congress in the Final Proclamation. Lincoln quoted at length from Congress in the Preliminary Proclamation; here he quotes only from himself. Both Congress and the States take second place in the constitutional drama now being enacted. They have served their purpose, they have had their chance¾and now the President must get on with conducting the war to save the Union.
We also notice that nothing is said of compensation for voluntary emancipation; nothing is said of compensation for loss of slaves by loyal slave owners. Both of these had been proposed, as promised, to Congress. But nothing substantial had come from the proposals. The emphasis is now upon this emancipation and its consequences.
A new stage has been reached in the war¾but a stage which, it can be argued, developed constitutionally from the preceding stage. This proclamation "gets right down to business": there are no "frills" or offers or alternatives¾but rather a judgment set forth in prosaic yet somehow solemn terms. [Page 778]
xi.
Now, therefore 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, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. Johns, St. Charles, St. James, Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans) Mississippi, Alabama, Florida, Georgia, South-Carolina, North-Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth-City, York, Princess Ann, and Norfolk, including the cities of Norfolk & Portsmouth); and which excepted parts are, for the present, left precisely as if this proclamation were not issued.
Lincoln's status of Commander-in-Chief is again emphasized, and reinforced further by the references to "time of actual armed rebellion" and "fit and necessary war measure." A solemn version of the date is again relied upon as he draws in this decree upon the full majesty of the language as well as upon the full force of the war power.
But the war power is properly to be employed for a certain purpose. It must be used discriminatingly, if constitutional government is truly to be defended. This is recognized by the exceptions Lincoln insisted upon making, in the application of his proclamation, for certain parishes in Louisiana and for certain counties in Virginia where Union forces were already in control. Might not Lincoln also have thought that such exceptions made his policy seem discriminating and hence contributed to its effectiveness?
The Secretary of the Treasury argued against such exceptions and kept after the President thereafter to extend the Emancipation Proclamation to all of Virginia and Louisiana. Lincoln replied on September 2, 1863:
Knowing your great anxiety that the emancipation proclamation shall now be applied to certain parts of Virginia and Louisiana [Page 779] which were exempted from it last January, I state briefly what appear to me to be difficulties in the way of such a step. The original proclamation has no constitutional or legal justification, except as a military measure. The exemptions were made because the military necessity did not apply to the exempted localities. Nor does that necessity apply to them now any more than it did then. If I take the step must I not do so, without the argument of military necessity, and so, without any argument, except the one that I think the measure politically expedient, and morally right? Would I not thus give up all footing upon constitution or law? Would I not thus be in the boundless field of absolutism? Could this pass unnoticed, or unresisted? Could it fail to be perceived that without any further stretch, I might do the same in Delaware, Maryland, Kentucky, Tennessee, and Missouri; and even change any law in any State?[185]
Notice the words, "Could this pass unnoticed?", "Could it fail to be perceived?" It is important for constitutional government what the people of the Country understand their officers to be doing and on what authority. And it is important that the people be trained to expect the basis of governmental authority to be evident, especially when extraordinary measures are resorted to.
Yet, we might ask, in what sense are the "excepted parts" "left precisely as if this proclamation were not issued"? Should not it have been evident to all¾was it not evident to (and perhaps even intended by) Lincoln¾that if the proclamation was effective with respect to the States and parts of States listed, then slavery was finished not only in the rebellious States but also in the loyal Middle States and in the "excepted" counties and parishes of Virginia and Louisiana? The emancipation of so massive a body of slaves made slavery itself quite vulnerable in the Country at large. Such slavery as then existed in North America could find enough intelligent defenders in this Country only if virtually all members of the slaves' race were subjected to slavery. If a significant number were free, and could develop themselves as free and responsible residents here, the supposed natural basis for slavery would no longer be tenable. Slavery could not survive, in a regime such as ours, if it [Page 780] clearly rested as much as it would have had to rest (after the Emancipation Proclamation) upon such obvious accidents as geography. The moral basis of slavery would have been undermined insofar as everyday morality rests in large part upon the customary and the uniform.
Consider finally, in this passage, how the States are listed: they are not alphabetical; nor in the order of admission to the Union; nor in order of secession. Rather, Lincoln begins with the only landlocked state among them (Arkansas), and then moves along the coast, starting with the State farthest away from him (Texas) and coming closer and closer to Washington (ending with Virginia). It is as if he sweeps them all in to himself. (States are listed differently in other proclamations.) Lincoln displays here a methodical turn of mind. In this way, too, we should be reassured to notice, he avoids "the boundless field of absolutism"¾and this means we can safely think about what he is doing, for then we are thinking about thinking rather then trying to think about that which is irrational or accidental and hence essentially unknowable.
xii.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
We see here brought to completion what had been promised on September 22. We again see that Lincoln's formal control is limited to the Executive government of the United States. Most of what one might say about this paragraph has been anticipated in this Lecture.
But what about the "order and declare"? Perhaps he realizes that he can order only some things, and can merely express a strong preference or hope with respect to other things. Consider other pairs of terms in this paragraph: "are, and henceforward shall be free"; "recognize and maintain the freedom of said persons." Does he order such persons to be free now? Does he order such freedom to be recognized now? He can do that, perhaps. But he cannot order that such freedom be "henceforward" or that it be maintained. Will not that depend on future governments and future circumstances, perhaps ultimately on the judgment and will of the American people? [Page 781]
I note in passing that "maintain" had been put into the Preliminary Proclamation at the suggestion of a cabinet member; but Lincoln had misgivings about it. He was reluctant, he indicated, to promise something he did not know he could perform. He has retained "maintain" here but perhaps not without hinting at his reservations.
xiii.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
We see here one great problem of the future, a problem which continues to this day. In dealing with the freed people, Lincoln recognizes what he can and cannot say. He can, as President, enjoin them to "abstain from all violence": that is what the law ordains. But he cannot enjoin them to work: if they are truly free men, they must decide that on their own. Here he can only recommend: they can be urged to work faithfully; their prospective employers are implicitly instructed to pay them reasonable wages. Thus, emancipation is one thing; preparation for self-government is quite another¾for that takes time and such willingness as Lincoln had to face up to the facts and to restrain himself. What can be proclaimed, therefore, is neither virtue nor genuine freedom but, at best, the removal of chains and a provision of opportunities. Education and training must thereafter do their part. Is not the problem with immediate, massive abolition reflected in the virtually complete silence about what is to become of the emancipated slaves? Is it sensible to expect them to manage on their own like other free men? Is not this why Lincoln had argued again and again for gradual, compensated emancipation, a mode of emancipation which could both motivate and empower masters to provide a proper transition for their slaves into a free life? Such a mode would have had the minimum of bitterness and of general poverty (due to the passions and ravages of war) to contend with.
Violence on the part of freed slaves is forbidden. Lincoln is speaking here to longstanding fears among slave owners of bloody slave rebellions, fears which Middle States unionists as well as Northern humanitarians shared. Should such violence have broken out on a large scale, the Union cause might have been discredited: the old concerns, and repression in the South, might have then appeared justified. Still, violence is understood to be permit-[Page 782]ted to the freed slaves for "necessary self-defense." Is this a law of nature? Would it be self-defense to use force against the master who wants to retain his emancipated slave?
We see in this "necessary self-defense" an echo of the "necessary war measure" Lincoln had declared himself obliged to resort to in defense of the Union. Indeed, self-defense had promoted and permitted the original compromises with slavery in 1776 and 1787¾that is, the defense of the several States, threatened by European powers and by continual war among themselves.
xiv.
And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.
This sentence is quietly stated; the use of "declare and make known" almost suggests he is reporting something rather than ordering something¾reporting something that is happening, that is bound to happen. The military uses to which freed slaves may be put are not immediately, or obviously, combative. He has to think of Southern fears and Northern prejudices, both of which can lead to actions harmful either to the slaves or to Lincoln's government. There would be something shocking, perhaps even unnatural, many must have felt, in former slaves fighting against their former masters. This was a development which took some time to get used to¾but it eventually came about, on a significant scale.
Southerners themselves were finally reduced to freeing slaves who would serve in their army. This vindicated Lincoln's policy as a genuine war measure, a war measure which made African slavery thereafter untenable among Americans.
xv.
And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.
This is perhaps the most complicated sentence in the two stages of the Proclamation. We must settle on this occasion for a few preliminary observations about it. Interpretation is made even more difficult when one understands it to have been supplied (in large part?) by a member of the Cabinet, not by Lincoln himself. If [Page 783] that should be so, what appears to be complexity may only be confusion.
Still, a few questions may be in order: "this act" is considered to be "warranted by the Constitution, upon military necessity." Is it done because it is warranted? Or it is done for some other reason, and the power to do so is provided by "military necessity"? An "act of justice" is pointed to as somehow involved here. Is this the true purpose? Or is it understood that a respect for justice is itself good military strategy? Notice that it is regarded as certainly a "military necessity" but that it is only "sincerely believed" to be an "act of justice." Is the truth about justice far harder to arrive at than truth about military strategy? The President had delayed a long time in doing this: he had had to decide what the right thing to do was¾and that depended not only on military strategy, natural right, and political circumstances, but also on his Constitutional powers, duties, and limitations.
The "considerate judgment of mankind" reminds us of the language of the Declaration of Independence's "opinions of mankind." Mankind has "judgment"; Almighty God has "gracious favor." It is not for man to assess what moves God or, indeed, to determine whether God moves at all. Man, it seems, must do what he thinks right¾and then hope or pray for the best. The references to both mankind and God serve to remind the reader that immediate, personal concerns should not be permitted to usurp in us the proper, one might even say the constitutional, role of the truly human, the justly divine.
xvi.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
It is said that the issuance of the Emancipation Proclamation was delayed on January 1st because when it came to be signed in the morning, another formal testamentary paragraph, one appropriate for another kind of proclamation, had been inadvertently used in the place of this one in the official copy. It had to be sent back to the State Department to be redone. (It is this, along with a reception Lincoln had to attend for much of the day, which contributed to the delay indicated in the passage I quoted from Frederick Douglass.)
We can see even here, in constitutional matters as in worship, the importance of forms, of appearances, and (perhaps) of chance. [Page 784]
xvii.
Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.
Nothing more (in addition to what has been said about the conclusion of the Preliminary Proclamation) needs to be said about this concluding sentence-- except perhaps to notice that it is in the City of Washington that the decisive declaration against slavery was issued, that slavery which even the slaveholders of Washington's generation, including Washington himself, can be said to have looked forward to ending in a responsible manner as the republic matured.
Has not this examination of the Emancipation Proclamation argued that if Lincoln, as Washington's legitimate successor, could have constitutionally "save[d] the Union" either by "sav[ing] slavery" or by "destroy[ing] slavery," he would have preferred to do so by taking advantage of this opportunity to destroy slavery? Indeed, to preserve the Union on his terms was, even without the Emancipation Proclamation, to destroy slavery.
V.
Three topics remain to be discussed¾but not at length in this Lecture. I will suggest the sorts of things that need to be considered.
There is needed, first, a consideration of the effects of the Emancipation Proclamation. One should note first and foremost that it did "work"¾in that it promoted the flight of slaves from the South, that it undermined both the economy and the moral standing of the South both at home and in Europe, and that it contributed a significant military force of freed slaves to the North. We can see that, in order for such a policy to work, timing was critical. Also critical was that the President should have had a clear notion of goals and standards. This means that his ultimate considerations drew upon prudence and justice more than upon liberty and equality (as these are generally understood).
As the Union army moved South, thereafter, it "naturally" left freed slaves in its wake. This had, it seems, a great moral effect on what the North was doing and what it was seen to be doing. For example, the Proclamation emancipated Lincoln himself and people like him, as well as the Constitution itself and the very idea of republican government, from the burden of slavery. [Page 785]
We can see as well that ideas do matter in political life. One might even say that only ideas matter. That which we call "symbolic" can be very important. One should, in considering such matters, begin with the fact that the Proclamation was at once regarded as important. Only the Thirteenth Amendment, abolishing all slavery in the United States (adopted by Congress early in 1865 for ratification by the States), produced as enthusiastic a response from the antislavery people as the Proclamation had done. To be regarded as important is, in political matters, to be at least somewhat important.
It should be evident to us, upon thinking about the Proclamation and its effect, how critical the opinion of the public is for law and, in turn, how critical law is for morality and for civilization. Above all, it should be evident to us how critical it is to know what one is doing.
It should also be evident to us that the Proclamation and the war effort it served have had bad effects as well: the ascendancy of Executive power in the United States can be understood to have started during the Civil War; the separation of powers was undermined as were the States; the war power was magnified; and the notion of "total war" was made respectable. Should not a political man of Lincoln's understanding and temperament now devote himself to redefining, for our changed circumstances, what is appropriate in our constitutional relations? Would not Lincoln himself insist today that practical reforms, some of a far-reaching character, be made if we are to address ourselves sensibly and safely to the new challenges which confront us?
VI.
That is one topic which should be developed. I have already touched upon my second remaining topic in this Lecture¾that which addresses itself to what we can learn, of a more general nature, from our study of the Emancipation Proclamation.
We see, of course, what prudence can mean in a particular situation¾and hence what prudence itself means. One must adjust to one's materials, including the prejudices and limitations of one's community. Such adjustment often includes settling for less than the best. But the most useful adjustment is not possible unless one does know what the very best would be. We can also sense, upon the study of the doings of prudent men, how important chance is in human affairs¾and hence how limited we often are in what we can do, even when we know what should be done. [Page 786]
We should notice as well, and guard against, that fashionable opinion which dismisses what is reasonable and deliberate as cold-blooded and calculating. It is also important, however, if one is to be most effective as a reasonable, deliberate, and deliberating human being, to seem other than cold- blooded and calculating¾that is, it is important to be a good politician. Once again we are reminded of the importance in political things of appearances, of a healthy respect for the opinions (and hence the errors as well as the sound intuition) of mankind.
Certainly, self-righteousness should always be held in check, but not always a show of indignation. Still, indignation even in a good cause should be carefully watched. Consider, for example, the famous Abolitionist William Lloyd Garrison's 1831 promise:
I will be as harsh as truth, and as uncompromising as justice. On this subject I do not wish to think, or to speak, or write, with moderation. No! No! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen;¾but urge me not to use moderation in a cause like the present. I am in earnest¾I will not equivocate¾I will not excuse¾I will not retreat a single inch¾AND I WILL BE HEARD. [186]
Such passion may be useful, even necessary, if great evils are to be corrected, but only if a Lincoln should become available to supervise what finally happens and to deal prudently with others (zealous friends and sincere enemies alike) with a remarkable, even godlike, magnanimity.
VII.
Now, to my final topic for the future, which I preface with three quotations which can serve to illuminate as well this entire commentary on the Emancipation Proclamation.
The first quotation is from the New Testament. "Behold, I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents, and harmless as doves."[187]
The second is from Stephen A. Douglas who said of Lincoln, in the course of their celebrated Illinois debates in 1858, that Lincoln [Page 787] "has a fertile genius in devising language to conceal his thoughts."[188]
The third is from Lincoln himself who once observed, "I am very little inclined on any occasion to say anything unless I hope to produce some good by it."[189]
Artemus Ward was evidently Lincoln's favorite humorist during the Civil War:
The President's reading of the humorist's story, "High-Handed Outrage at Utica" to his cabinet before presenting them with the Emancipation Proclamation [on September 22, 1862] is well known. "With the fearful strain that is upon me night and day," said Lincoln, "if I did not laugh I should die, and you need this medicine as much as I do."[190]
But, I suggest, there may be even more to this famous episode than is recognized. Why was that particular story selected by Lincoln for this occasion? The story Lincoln read to his cabinet is amusing. But notice, also, that it is about a great traitor, perhaps indeed the greatest traitor who has ever lived. This traitor is dealt with soundly, if irrationally, in the story.[191] [Page 788]
Consider the title: "High-Handed Outrage at Utica." Utica was the famous African city that allied itself to republican Rome in the mighty struggle against Carthage. Did not Lincoln intend to gather to the cause of the American Republic an African power (those men of "African descent") against the threatening Carthage represented by the South?
But, perhaps he recognized, there was in his own action something questionable, something dubious, even high-handed and outrageous¾at least, there would be, in appearance, especially if he did not handle it properly. Thus, he saw himself as others saw him, or as others might see him¾and laughed at himself.
This would be, of course, most subtle¾and far higher humor than anything Artemus Ward was ever capable of. But if Lincoln should have been so subtle, so detached, should not that really make us take notice? It points up the deliberateness, the self-conscious artistry, the coolness of Lincoln. This is, indeed, startling self-criticism, which he would share with his most perceptive observers. Or should what I am now drawing upon be dismissed as mere chance and hence unsound speculation? So be it¾for those who would have it so.
In any event, we are obliged to emphasize, even more than we have already, that Lincoln must have known what he was doing, including what impression he needed to make. This man is truly a remarkable child (indeed, a prodigy) of the American constitutional regime. Should not these observations induce us to return to the Emancipation Proclamation and to take it, as well as the Constitution that it both draws upon and serves, even more seriously than we have? We have examined merely the Proclamation's surface¾but in doing so, have we not been reminded that the surface, the appearance of things, is critical for responsible political action?
The words one uses¾and the words one keeps to oneself¾very much contribute to the appearances of things and hence to one's effects. In this sense, a word fitly spoken is like apples of gold in settings of silver.[192] [Page 789]
12. AMENDMENTS XIII, XIV, AND XV
I.
The three Civil War Amendments to the Constitution of 1787 continued the deep wartime division in this Country by pitting one section against another, at least until the passions of war had subsided enough to permit everyone to see that the new order was truly preferable in key elements to that with which the Framers of the Constitution had been saddled in 1787. No respectable defenders of slavery are heard among us today. Even the segregation of a half century ago has come to be generally recognized as no longer defensible, however useful it may have once seemed during a period of transition following the Civil War and Reconstruction. The merits of the new order are so widely appreciated that little is heard these days either about the way in which ratifications were gotten out of State legislatures for one or more of the Civil War Amendments or about the way the United States Supreme Court explained itself in dealing the mortal blow to segregation that it did in 1954.
We have noticed the orderliness of the arrangement of the first ten Amendments and, to a lesser extent, of the next two Amendments as well. But, we have also noticed, there is far less of a pattern to the Amendments after the Twelfth, except as responses to historical developments and unpredictable events around the world or within the United States. This suggests that the original constitutional framework was sound.
The Amendments since the Bill of Rights, as well as the Confederate Constitution of 1861, testify to what happens when constitution-making is done primarily in response to events or circumstances. The Constitution of 1787, on the other hand, rises above circumstances to a remarkable degree, however much it was prompted by the problems of that day. Even so, the need for amendments was anticipated by the Constitution's Framers, especially by those who recognized that there had to be compromises that would keep the Constitution from conforming even more than [Page 790] it did with that natural constitutionalism which is evident in the strivings of Americans from the beginning.
Amendments to the Constitution, I have suggested, have tended thus far to refine, if not merely to confirm, what has already happened. Even the three Civil War Amendments, which are regarded as the most far-reaching of the twenty-six Amendments there have been to the Constitution of 1787, reflect what had already happened in this Country. The war was over, and now the Union victory had to be "ratified." One way or another, this was going to be done, even though it took more than a century to work out much of what was intended by the three Amendments. Even without formal amendments, most of what has happened in adjusting constitutional arrangements to the outcome of the war would probably have come about anyway, especially as Americans responded and conformed to worldwide developments in race relations. (The South African experience is instructive here.) Still, the Civil War Amendments have helped guide, or at least illuminate and define, developments in this Country for a century and a quarter now.
II.
Foremost among the developments to be "ratified" by the Civil War Amendments was the abolition of slavery¾not only the raw institution itself but, as much as possible, everything that permitted (if not required) it and everything that flowed from it. One way or another, the practices, principles, and legacies of slavery were to be eliminated.
Slavery had been a critical problem in the Federal Convention of 1787 and thereafter in the Constitution itself. "Everyone" recognized in 1787 that slavery was a serious defect in the system; but it was also widely recognized that it simply had to be put up with, that it could not be immediately abolished in the Country as a whole. That those citizens who were so unfortunate in 1787 as to be personally dependent on slavery appreciated the general detestation of slavery in the United States is revealed by the precautions they took in insisting upon provisions in the Constitution that would protect aspects of slavery from immediate suppression.
All human beings resident in the United States are, according to the Civil War Amendments, to have access to the principal legal prerogatives of everyone else who lives here. The equality principle finally came to terms with slavery. In the United States this vital principle is nourished by venerable doctrines and is rein-[Page 791]forced, if not even "taught," by considerable experience. One massive influence upon American opinion has been the fact that virtually anyone with productive capacities could move West, set up his own establishment, and hence be "his own man." Everyone, therefore, could readily consider himself to be as good as anyone else. Hereditary privilege, and sometimes even family attachments, fell before an openness to self-development. This openness remains, if not on some Western frontier, at least in the realm of the economic opportunities and social advancement to which we have long been accustomed, fueled as they now are by scientific discoveries and technological innovations.
The equality principle has been drawn upon in several constitutional Amendments for more than a century now. But the Civil War Amendments were particularly important here, with the Fourteenth Amendment providing, in effect, a second Bill of Rights in that it guaranteed various rights as against the States and in that it sought to bring everyone living in this Country under its coverage. Just as the Constitution of 1787 permitted the National Government to reach citizens directly without depending on the States (for example, in taxing them), so the Fourteenth Amendment permitted citizens to look to the National Government for protection against State infringements of traditional (if not even natural) rights.
The principles of the Fourteenth Amendment could not be taken with full seriousness, however, until slavery had been truly abolished. This was the objective to which the Thirteenth Amendment had been dedicated and to which the Fifteenth Amendment returned.
III.
Section 1 of the Thirteenth Amendment provides, "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."
This absolute prohibition of slavery in this Country implicitly relied upon the "created equal" statement in the Declaration of Independence, a statement that Lincoln for one had emphasized in developing his political principles in the 1850s. Just as Americans had had to put up with the Articles of Confederation arrangement in order to get on with the Revolutionary War in 1777, so too they had to put up with slavery in order to get on with the development and ratification of the Constitution in 1787. But in both cases, [Page 792] these accommodations were widely recognized to be temporary expedients.
The natural inclination of Americans who had subscribed to the principles of the Declaration of Independence may be seen in the Northwest Ordinance, which had been enacted by the Confederation Congress in New York City during the same summer that the Constitution was drafted in Philadelphia. The last major provision in the Ordinance of 1787 reads,
There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted: Provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
It can be seen where the decisive language of the Thirteenth Amendment was taken from sixty years later.[193] Even so, the absolute prohibition of slavery in the Northwest Territory did depend on an accommodation to slavery interests in "the original states": a fugitive-slave assurance had to be added lest the institution of slavery in those States be undermined by flights of slaves to the northwest.[194]
The Thirteenth Amendment was anticipated by executive actions taken during the Civil War, culminating (as we have seen) in the Emancipation Proclamation of President Lincoln on January 1, 1863. We have observed that this kind of executive action, reflecting considerable expansion of Presidential power, is to be expected in wartime. Even so, the Thirteenth Amendment goes further: the Emancipation Proclamation had freed slaves held in the areas still in rebellion; the Amendment provides that slavery simply "shall [not] exist within the United States." All slavery, future as well as present, is thereby forbidden and invalidated, no matter under whose auspices slaves are held in this Country.[195] [Page 793]
The abolition of slavery by the Thirteenth Amendment in 1865 is in dramatic contrast to the amendment that had been proposed by a desperate Congress in 1861 in an effort to reassure the South and thereby to head off the drive to Secession:
No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.[196]
The Thirteenth Amendment is to be contrasted as well to the Constitution of the Confederate States of America. We noticed in Lecture No. 1 that no later State government ever again aspired to the power in the Union that the States in the Confederation exercised between 1860 and 1865. The successful Union effort to suppress those State pretensions led among us to that magnification of the national powers which has been virtually impossible ever since to reverse, especially during periods of crisis.
The Thirteenth Amendment of 1865 was followed three years later by the Fourteenth and two years after that by the Fifteenth. The Thirteenth Amendment "merely" abolished slavery and empowered Congress to make certain that the abolition would be as thorough as the Country wanted it to be. Had it been evident from the outset that the emancipated slaves would not be permanently discriminated against¾if it had been evident, say, that they would be treated like the newly-arrived and hence somewhat-handicapped immigrants who are usually permitted to do as well as their talents and initiative permit¾then the Fourteenth and Fifteenth Amendments might not have been resorted to by Congress. Without those two Amendments, the powers and immunities of the States might have remained, at least for a while, pretty much what they had been under the Constitution of 1787. We will never know what would have happened if the abolition of slavery had been immediately accepted in good faith in the South, just as we will never know what would have happened if another ordinance had in the 1780s, like the Northwest Ordinance, forbidden the spread of slavery to the Southwest Territory as well. [Page 794]
IV.
Whereas the Thirteenth Amendment is fairly simple and straightforward, the Fourteenth Amendment is much more complicated. Even more complicated is what has been done with the Fourteenth Amendment by courts and scholars, so much so that nothing I could say here is apt to provide more than the barest guidance to anyone familiar with the Amendment, its interpretation, and its implementation.
Still, I offer enough of an account of the Amendment to permit it to be fitted into an overall scheme of things, so that one can begin to think in a reliable manner about the Fourteenth Amendment and how it has been interpreted. It is critical, in approaching this Amendment, to remember that once the Union forces had prevailed against a radical "State Sovereignty" position in the Civil War, the States would eventually be obliged to recognize the fundamental rights of Americans, at least those great rights that had been recognized, even before the Bill of Rights, as part of the inheritance of the English-speaking peoples.
There are, in the first section of the Fourteenth Amendment, four elements. I shall consider each of these elements in turn before going on to the other four sections in the Amendment. The Amendment begins, "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."
This sentence reverses, in effect, the ruling by the United States Supreme Court a decade before in the explosive Dred Scott Case. The Court had ruled in effect on that occasion, despite the precedent of the Northwest Ordinance, that the Due Process Clause of the Fifth Amendment kept Congress from prohibiting the introduction of slavery into any territory of the United States. Opposition to that ruling, which deeply divided the Country, had been vital to the platform of the Republican Party in 1860. Among the things said by the Supreme Court in Dred Scott was that no one of African descent could, for constitutional purposes, ever be considered a citizen of the United States, whatever individual States might say or do. It was even argued on that occasion, in support of this ruling, that the authors of the still- authoritative Declaration of Independence had not meant to include anyone of African descent within the scope of the challenging pronouncement that "all Men are created equal." The most elaborate discussion of this issue may be found in the celebrated Lincoln-Douglas debates conducted in [Page 795] Illinois in 1858.[197]
Thus, this part of the Fourteenth Amendment, like the Eleventh Amendment before it and the Sixteenth and to some extent the Twenty-sixth Amendment after it, came in response to a Supreme Court ruling. A different kind of response to questionable Court rulings is the effort to change the composition of the Court, a response that is easier to make than an amendment but that may not be as reassuring because of the long-term unpredictability of the judges who may be appointed. Our general deference to "the Law" makes it likely that even a wrongheaded decision by the United States Supreme Court will be so respected, once established, that only a constitutional amendment will be considered adequate to reverse it.
The influence of a Supreme Court ruling is such that even though the Thirteenth Amendment abolished slavery in 1865, it was still believed by many that something had to be done to rid the Country of the pernicious effect of the 1857 Dred Scott ruling with respect to the nature of American citizenship. One consequence of the opening sentence of the Fourteenth Amendment was to require the States to surrender some of the considerable power they had had theretofore with respect to definitions of State citizenship.
V.
The drafters of the Fourteenth Amendment, once they had settled the citizenship issue, could go on to provide for the prerogatives of citizenship: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . . "
It seems to be generally agreed that the Fourteenth Amendment was intended to apply to the States various of the constitutional restraints that had been applied theretofore only to the General Government. If so, reliance upon the Privileges and Immunities Clause of the Amendment seems the most obvious way to carry out that intention.
There has been, for more than a half century now, considerable argument as to which restraints on government are to be made applicable against the States. Some say that all of the Bill of Rights should be extended to the States; others say that most of the Bill of [Page 796] Rights should be extended; a few attempt to add to the Bill of Rights still other restraints for the States to be bound by.
It seems to me that "the privileges and immunities of citizens of the United States" binding upon the States should include at least all of them not of a peculiar federal character that may be recognized in the Bill of Rights. But it is obvious that privileges and immunities were believed to be identifiable prior to the drafting of the Bill of Rights in 1789 because there is a Privileges and Immunities Clause in Article IV of the Constitution of 1787 as well. The Bill of Rights, we should remember, did not create the rights set forth therein but, for the most part, reaffirmed long-established rights. The Ninth Amendment also reminds us that rights exist for the American people independently of their enumeration in the Bill of Rights. State constitutions can be looked to, therefore, as well as other constitutional documents (including the Constitution of 1787), to determine what rights are taken seriously by the American people.[198]
This problem is complicated, however, by the modern tendency to rely primarily upon the courts to protect the rights we have, a tendency which, curiously enough, goes along with the refusal to take the Common Law (with the rights it recognized) as seriously as it once was. The emphasis in the Fourteenth Amendment is upon the making or enforcing of any law, which provides a guide to State legislatures and executives as well as to the judiciary. If there are privileges and immunities of citizens of the United States that the States are bound to respect, does not that mean that the General Government should (independent of explicit provisions either in the Bill of Rights or in the Fourteenth Amendment) also be bound to respect them?
I have suggested that the straightforward way of extending against the States the rights otherwise recognized by the Constitution is through the Privileges and Immunities Clause of the Fourteenth Amendment.[199] But an 1873 ruling by the Supreme Court[200] slaughtered the Privileges and Immunities Clause of the Fourteenth Amendment and effectively removed it (for more than a century now) from serious consideration as the means for assuring restraints upon the States. This has led to one distortion after [Page 797] another as, once again, the American people have been obliged to work their way around what the Supreme Court has wrought in their pursuit of the aspirations evident in the Declaration of Independence and the Constitution of the United States.[201]
VI.
Section 1 of the Fourteenth Amendment continues: "nor shall any State deprive any person of life, liberty, or property, without due process of law." This draws upon a provision found in the Fifth Amendment. There is no reason to believe that this 1868 provision should be read differently from the 1791 provision, which, as we have seen, reminds judges in the Courts of the United States of due process obligations of long standing in Anglo-American jurisprudence. Indicative of what due process means are such references to it as that found in the Thirteenth Amendment: "crimes whereof the party shall have been duly convicted."
Notice that the two Due Process Clauses cover all persons, not only citizens of the United States. Everyone is entitled to a fair trial when he is about to be deprived in this Country of his "life, liberty, or property."[202] It can be argued that the right to a fair trial, in both criminal and civil cases, is one of the privileges and immunities of citizens of the United States¾and, if so, the Due Process Clause in the Fourteenth Amendment is superfluous. But the Privileges and Immunities Clause seems to be primarily concerned with the making or enforcing of statutes that may be questionable, while the Due Process Clause looks primarily to the conduct of judicial proceedings, including Common Law cases, aside from what may be done through the use of statutes. Thus, the sequence in Section 1 of the Fourteenth Amendment ("making," "enforcing," and "process") follows the sequence of the first three articles of the Constitution (Legislative, Executive, and Judicial).
Even though the Due Process Clause of the Fifth Amendment continues to be read as primarily a guide for judges (in the National Courts), the Due Process Clause in the Fourteenth Amendment has been used as the means for bringing to bear upon the State governments (not just upon State judges) an array of rights [Page 798] due to people living in the United States. That is, the Due Process Clause has been relied upon to do what the Privileges and Immunities Clause was originally believed to do. The Supreme Court could effectively get rid of the Privileges and Immunities Clause in 1873, but it eventually felt obliged (considering certain inherent tendencies in the American regime) to find some other way to subject the States to the principles and restraints that Americans had "always" believed should be respected by all governments. These principles and restraints are invoked, we have seen, in such documents as the Declaration of Independence.
However defensible this use of the Fourteenth Amendment's Due Process Clause may have been in many ways, it has not promoted care in reading of the Constitution. When virtually identical provisions, as those in the Fifth and Fourteenth Amendments, can be read so differently, people come to suspect that the Constitution is no more than what the judges happen to say it is. If the Due Process Clause of the Fourteenth Amendment can be expanded the way it has been, there seem to be no limits upon what may be done with it. Perhaps even more significant, if the extension of rights against the States is done by means of the Due Process Clause, the primary guardian of those rights is more likely to be taken to be the courts, since due process has traditionally been associated with judicial proceedings. But it is evident, as we shall see when we come to Section 5 of the Fourteenth Amendment, that Congress was looked to for leadership in protecting the rights of the American people. Dred Scott taught thoughtful citizens that the United States Supreme Court could not be left to its own devices here.
VII.
Section 1 of the Fourteenth Amendment concludes: "nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws." The principle of equality fundamental to the American regime, which can be said to go back to Magna Carta and which was proclaimed in the Declaration of Independence, is for the first time made explicit in the Constitution.
It is likely that the recently emancipated slaves were the primary concern of the framers of the Fourteenth Amendment. They are to have the rights that others have. But that means that all others do have those rights also, and perhaps have them now more firmly than ever before, whatever individual States may want to do.
The sequence of the provisions in Section 1 of the Fourteenth [Page 799] Amendment suggests that they do not cover the same things. First, citizens are identified: that is the bedrock upon which everything else is built. It is then provided that State governments may not abridge the privileges and immunities of citizens. But, it seems to be recognized, due process may be denied in particular cases even though the privileges and immunities of citizens may be generally respected by the laws that are made and enforced¾and so the Due Process Clause is added. But, it then seems to be recognized, although privileges and immunities may be respected and due process may be available, some persons may be mistreated by being subjected to laws that do not apply in the same way to others¾and so the Equal Protection Clause is added. Or as it has recently been put by a Supreme Court Justice, this Clause "requires every State to govern impartially."[203]
The Equal Protection Clause is implied, it can be said, by the Rule of Law. Perhaps, indeed, it is implied in the American constitutional system from the beginning, however much it was compromised by the institution of slavery. One way or another, it has come to be argued, the Equal Protection principle should be applied against the General Government as well.[204]
We have seen that the equality principle has been so powerful in the United States that one constitutional provision after another is looked to by those who want to see that all governments in the United States respect, for all persons, the rights that Americans have long believed are due not only to them but to all human beings in appropriate circumstances. Critical here may be that natural right¾that sense of what is by nature right¾to which I have already referred.[205]
Section 1 of the Fourteenth Amendment, with its disciplining of the States by bringing to bear against them the rights traditionally recognized by the American people, ushered in a significantly revised [Page 800] constitutional arrangement in the United States. The Gettysburg Address, which serves as the preamble to this "new" Constitution, argues in effect that this redefined American regime was implicit from the very beginning.
VIII.
Section 2 of the Fourteenth Amendment provides that, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." One immediate consequence of this was to increase the voting power of the Southern States in the national councils, since the emancipated slaves were now to be given full weight (not three-fifths as had originally been provided for slaves).
Thus, equality immediately proved threatening for Northerners: they could see themselves penalized substantially in Congress by their victory in the Civil War. The first sentence of Section 2 may not have been needed, since the counting for apportionment purposes would routinely include the citizens identified in Section 1. This sentence seems to be there as an introduction to what follows, the limitation placed upon those States that deny the right to vote "to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States."
This provision does not invalidate the denial of voting rights, but rather penalizes States that do deny those rights. Perhaps the Equal Protection Clause should invalidate such denials, but the States that did deny rights would be strengthened in Congress until an official invalidation took effect. And so Congress is empowered to deny seats to offending States.
The Northerners who controlled the Congress that wrote the Fourteenth Amendment were willing to have the emancipated slaves counted if they could vote. Presumably, they could as voters affect who was chosen to go to Congress and to fill various posts in State government.
IX.
Section 3 of the Fourteenth Amendment represents another attempt by the Congress to hold Southerners in check, at least for a generation. Public office, National as well as State, was denied to any person "who, having previously taken an oath . . . to support the Constitution of the United States, [had] engaged in insurrection or rebellion against the same." [Page 801]
We are reminded by this provision that the equality principle can be suspended, in its application, by one's circumstances or conduct. Criminals, for example, are routinely denied various civil rights. Just as slavery had kept people of African descent from full access to the privileges and immunities of Americans, so could rebellion affect the full access of others.[206]
One implication of Section 3, and of Section 4 as well, seems to be to declare secession itself to be unconstitutional, for the disability here seems to refer not only to previous but also to future rebellions.
X.
Section 3 of the Fourteenth Amendment provided for penalizing rebels in their public capacities. Section 4 provides for penalizing rebels in their private capacities, that is, "neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave."
Among the purposes of this provision, it would seem, was to head off any claims against the United States for the loss or emancipation of slaves, perhaps by recourse to such provisions as the Taking Clause of the Fifth Amendment. Such claims would have had little chance of success insofar as emancipation came by way of the Thirteenth Amendment. But what about losses and emancipation that had come by way of military action and executive decrees? The Fourteenth Amendment says, in effect, that people who have lost slaves cannot expect to be compensated by any public funds, National or State.
XI.
Constitutional Amendments, beginning with the Thirteenth, have taken to adding a provision empowering Congress to enforce the Amendment. Such provisions may be found in more than half of the Amendments since the Thirteenth Amendment.
Section 5 of the Fourteenth Amendment reads, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Much is left for Congress to do in working out implications of the Fourteenth Amendment. This points up the supervisory role of Congress in these matters. [Page 802]
Does such a provision do more than the Necessary and Proper Clause does in empowering Congress? In fact, does the use of such a provision in some Amendments implicitly, however inadvertently, limit the powers of Congress with respect to the matters covered in those Amendments that do not happen to have such a provision?
What constitutes "appropriate legislation" by Congress in "enforc[ing] the provisions" of the Amendment? Is Congress limited simply to making sure that the various provisions in the Amendment are carried out? For example, Congress may act to make sure that no person is deprived of equal protection of the laws. But may Congress also act to serve the purposes for which equal protection is evidently desired? It is here that one case for the authority to use affirmative-action programs may be made. This would be authority for the majority to do on behalf of a minority at the immediate expense of the majority what could not be done on behalf of the majority at the expense of the minority. Such action would be designed to serve the interest of the entire community as well as of the minority. It can be argued that the ultimate concern of Section 5 of the Fourteenth Amendment is not to ensure State compliance with certain formal standards but rather to permit the United States to advance racial justice. It may not be enough, considering the lingering effects of centuries of deprivation of African-Americans in this Country, merely to forbid formal State actions of a certain character hereafter. Certainly, the early Congresses under the Fourteenth Amendment, including the Congress that drafted it, considered it within their power to provide special programs on behalf of the recently emancipated slaves.
XII.
The Fourteenth Amendment recognized the integrity of the Union that had been sealed in blood by the Civil War. That war had made many feel that they had a Country¾the Nation which they had fought for and across. The war may even have provided Americans a depth and dignity they had not had before, with sacrifices made in 1861-1865 that should perhaps have been made in 1787-1791 in disposing of slavery at the outset in an authoritative and permanent fashion, however long that disposition might have taken at that time.
Once the integrity of the Union had been affirmed by a great war, especially through a struggle that began for the National Government as an effort to keep the Union together and ended as a [Page 803] crusade against slavery, the Fifteenth Amendment naturally followed upon the Thirteenth and Fourteenth Amendments: "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."
The primary concern of both the Thirteenth and the Fifteenth Amendments is with the condition and treatment of the former slaves. This makes it likely that the Fourteenth Amendment is also very much concerned with those people, however much others may benefit as well because of the reaffirmation and application in that Amendment of various general principles.
Perhaps it was originally believed by the framers of the Fourteenth Amendment that it would guarantee voting rights for the former slaves. Those rights are taken for granted in Section 2 of this Amendment. But it seems to have become evident, fairly soon, that more direct, or explicit, provisions about something so fundamental as voting were needed. Even the Fifteenth Amendment required more than half a century to take hold. The insistence upon voting rights has proved decisive, especially when underwritten and directed by Congressional mandates. Invocations of the equality principle have made it easier to insist upon such rights.
XIII.
All branches of the General Government have contributed to accomplishing the aims of the Civil War Amendments. This is something that is much easier for the National Government than for the State Governments to do, even though the Southern States have been liberated by the war and its Amendments from crippling institutions.
Congress started the implementation of these Amendments with legislation in the 1860s and 1870s and has continued down to our day, culminating in the recent Civil Rights and Voting Rights legislation. African-Americans have not been the only beneficiaries of some of this legislation. Even when they have been intended as the principal immediate beneficiaries, the entire Country has benefited from the empowerment, reassurance, and development of a significant minority within it.
The Executive, too, started implementation of these Amendments in the 1860s and 1870s. This was anticipated by the Emancipation Proclamation and was furthered by directives issued to, and promulgated by, armies of occupation in the South. Since the Second World War, executive orders have been critical in the cur-[Page 804]tailment of racial discrimination in the armed forces of the United States, so much so that an African-American four-star general was widely respected as the Chairman of the Joint Chiefs of Staff in charge of the overall military direction of the 1990-1991 war in the Persian Gulf region.
The record of the Judiciary regarding civil rights matters has been spottier than that of the Congress and the Executive. Rulings by the Supreme Court in the decades following the Civil War seriously hampered what Congress had tried to do.[207] Plessy v. Ferguson[208] did not help either. The Court's most dramatic manifestation of a more enlightened position may be seen in the 1954 school-desegregation case, Brown v. Board of Education[209]¾but Brown and like cases might not have been needed to the extent or in the way they were if the Court had been more sensible in its readings of the Fourteenth Amendment in the last quarter of the Nineteenth Century.
I have suggested that the affirmative-action issue has yet to be sensibly settled by the Courts. Another issue in need of sensible resolution is the status of "State action" under the Fourteenth Amendment. It is often said by the Courts that Congress, in enforcing the provisions of this Amendment, can only direct its attention to actions taken by the States that deny equal protection of the laws. Private actions, it is argued, are beyond the scope of Congress under the Fourteenth Amendment, whatever Congress may do pursuant to other powers it may have (such as the Commerce Power). But it is evident in the sequence of Civil War Amendments that Congress attempted to deal with one subterfuge after another whereby efforts might be made to deny various rights to the former slaves. If a community, by custom and other means which can have the force of law, does "informally" what it cannot [Page 805] do "formally" (that is, by explicit statutory provisions), may nothing be done to check it pursuant to the Fourteenth Amendment? Congress in the 1860s believed it was authorized to supervise "private" activities bearing on race relations, but the Supreme Court in the following decades thought otherwise. Again one must consider whether the evident purposes of the Fourteenth Amendment suggest what Congress might do to deal with actions and conditions that thwart a humane national purpose.
In these and related matters it is often more sound for Congress to take the lead, for it usually can decide better than can judges how much of the "private" activity in and of a community is to be regulated and in what way. After all, is it not really the community that is often "expressing" itself through these "private" activities? And if so, is it not better to counter that form of public effort with another form of public effort of a more "official" character, something which the Congress (as the branch of government most sensitively representative of the people) is usually better equipped to develop than either the President or the Courts? The people are thereby confronted by themselves, but in a more elevated form.
The Editors have complied with the author's stylistic preferences in this Article.¾Ed.* This Commentary is based largely upon the Centennial Lectures delivered at Lenoir-Rhyne College, Hickory, North Carolina, during the 1990-1991 academic year. This Commentary, with additional appendices, is to be published in book form. The author is grateful for the help provided him at Lenoir-Rhyne College by John E. Trainer, Jr., J. Larry Yoder, Marianne Yoder, Joseph S. Mancos, and Beverly Heer, and by Stephen J. Vanderslice of Louisiana State University at Alexandria.
The author has prepared a similar Commentary on the United States Constitution. GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY (1989). An earlier version of that book appears at 18 LOY. U. CHI. L.J. 15 (1986). For a complete bibliography of the author's books, articles, and lectures, see 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY; ESSAYS IN HONOR OF GEORGE ANASTAPLO 1073-1145 (John A. Murley, Robert L. Stone, and William T. Braithwaite eds., 1992).
** Professor of Law, Loyola University Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago. A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago.
. . . .
120. ANASTAPLO, THE CONSTITUTIONALIST, supra note 66, at 420.
121. THE POLITICAL THOUGHT OF AMERICAN STATESMEN 6 (Morton J. Frisch & Richard G. Stevens eds., 1973).
122. Unless otherwise indicated, all quotations in the text of Lecture No. 9 from the Jefferson-Adams correspondence are taken from their letters of July 5 and July 16, 1814. These two letters, which are set forth in Appendix A, are from THE ADAMS-JEFFERSON LETTERS 430-39 (Lester J. Cappon ed., 1971).
123. See, e.g., Letter from Thomas Jefferson to Don Valentin de Foronda Coruna (Dec. 14, 1813), reprinted in 14 THE WRITINGS OF THOMAS JEFFERSON 32 (Andrew A. Lipscomb ed., 1905) [hereinafter JEFFERSON WRITINGS]; Letter from John Adams to Thomas Jefferson (Mar. 2, 1816), reprinted in 14 JEFFERSON WRITINGS supra, at 441.
124. Similar criticism are made by them elsewhere. See, e.g., Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 219.
125. See PLATO, SYMPOSIUM 185D-E. See generally LEO STRAUSS, SOCRATES AND ARISTOPHANES (1966).
126. Letter from Thomas Jefferson to William Canby (Sept. 18, 1813), reprinted in 13 JEFFERSON WRITINGS, supra note 123, at 377.
127. See ANASTAPLO, AMERICAN MORALIST, supra note 12, at 350.
128. Letter from Thomas Jefferson to Nathaniel F. Moore (Sept. 22, 1818), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 218.
129. Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 219, 222-24.
130. On the Declaration of Independence and the pursuit of happiness, see George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEX. TECH L. REV. 968, 987 (1991) [hereinafter Anastaplo, Constitution at Two Hundred]. Consider also Laurence Berns's remarks at a St. John's College memorial service in 1979 for Simon Kaplan:
[H]e was concerned for the land of his refuge. What troubled him has been called many things: pseudo-sophistication, permissiveness, moral decline. His own way of putting it was much simpler: barbarism and, most dangerous of all for America, hedonism. What seemed to bother him was the fact that when people cease to observe and impose limits on themselves, it becomes natural to think more about having limits imposed by others from above.
ANASTAPLO, AMERICAN MORALIST, supra note 12, at 294. Consider also Haggai 1:2- 4:
Thus says the Lord of hosts: "this people say the time has not yet come to rebuild the house of the Lord." Then the word of the Lord came to Haggai the prophet, "Is it time for you yourselves to dwell in your paneled houses, while this house [of the Lord] lies in ruin?"
Id. Compare 1 Chronicles 17:1. See also supra note 30.
131. For Adams's assessment of the thinkers of his own time, see Letter from John Adams to Thomas Jefferson (Dec. 25, 1813), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 33-34. Consider also the following instructive account of the American Heritage:
The political thought guiding the Founding, and hence the subsequent constitutional order, emerges out of and in some sense rebels against three complex, diverse, and competing traditions of Western political and republican theorizing. These traditions are: (1) the theocratic tradition rooted in the Bible, (2) the classical republican tradition rooted in classical political philosophy, and (3) the liberal tradition which originated out of a vast rebellion against the first two in a radically new rationalism and politics spearheaded by Machiavelli, Bacon, and Descartes. I would characterize the political thought of the American Founding as occupying, if you will, a tension-ridden field of spiritual and intellectual energy emanating from these three poles of radiation. The attaining of a clear view of the distinctive and even warring forces emanating from these three poles is fundamental to any accurate conceptualization of the Founders' enterprise. Only by such a careful delineation can we begin to understand what truly defines, and in some degree distinguishes, the thought of the various American Founders. That definition consists partly in the Founders' firm agreement with one pole¾that of rebellious modern rationalism¾over and against the two older poles, but also partly in various Founders' sometimes elegant, but oftentimes awkward, attempts to create new syntheses of ancient and modern rationalist and religious political thinking.
Thomas L. Pangle, The Classical Challenge to the American Heritage, 66 CHI. KENT L. REV. 145, 148 (1990); see also ANASTAPLO, AMERICAN MORALIST, supra note 12, at xiv-xvi.
132. See ARISTOPHANES, CLOUDS, line 1111. A particularly helpful translation of this classic is ARISTOPHANES, CLOUDS (Thomas C. West & Grace Starry West trans., 1984).
133. Jefferson repeats this in an 1819 letter. Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 219-20.
134. Letter from Thomas Jefferson to Roger C. Weightman (June 24, 1826), reprinted in 16 JEFFERSON WRITINGS, supra 123, at 182. Jefferson also observed in this letter, as he anticipated the celebration of the fiftieth anniversary of the greatest Fourth of July:
All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are grounds of hope for others.
Id.
135. Letter from Thomas Jefferson to Baron Alexander Von Humboldt (Dec. 6, 1813), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 21.
136. See, e.g., Letter from Thomas Jefferson to John Adams (Jan. 24, 1814), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 74.
137. Letter from John Adams to Thomas Jefferson (Mar. 2, 1816), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 439.
138. Letter from Thomas Jefferson to General Henry Dearborn (June 14, 1809), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 292.
139. Letter from Thomas Jefferson to Governor Wilson C. Nicholas (Apr. 2, 1816), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 449.
140. One of Lincoln's few references to Plato is with respect to the immortality of the soul. See 3 ABRAHAM LINCOLN, THE COLLECTED WORKS OF ABRAHAM LINCOLN 357 (Roy P. Basler ed., 1953) [hereinafter COLLECTED WORKS OF LINCOLN]. Did Lincoln pick this up from Jefferson? See infra note 149.
141. See Letter from John Adams to Thomas Jefferson (Dec. 25, 1813), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 34; see also Letter from John Adams to Thomas Jefferson (Sept. 14, 1813), reprinted in 13 JEFFERSON WRITINGS, supra note 123, at 372-73 (on whether the universe is infinite and eternal); Letter from John Adams to Thomas Jefferson (Mar. 2, 1816), reprinted in 14 id. at 440 ("Why then should we abhor the word God, and fall in love with Fate? We know there exists energy and intellect enough to produce such a world as this, which is a sublime and beautiful one, and a very benevolent one. . . . ").
142. Jefferson acknowledged that he occasionally tailored what he had to say to his audience. Letter from Thomas Jefferson to William Canby (Sept. 18, 1813), reprinted in JEFFERSON WRITINGS, supra note 123, at 376; see also infra notes 148, 188. See generally LEO STRAUSS, PERSECUTION AND THE ART OF WRITING (1952).
143. Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 220; see also Pangle, supra note 131, at 147 ("Xenophon was probably the most widely read and cited classical political theorist at the time of the [American] Founding.").
144. The questionable Christian doctrines for Jefferson are "[t]he immaculate conception of Jesus, His deification, the creation of the world by Him, His miraculous powers, His resurrection and visible ascension, His corporeal presence in the Eucharist, the Trinity, original sin, atonement, regeneration, election, orders of Hierarchy, etc." Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 221 & n.1; Letter from Thomas Jefferson to Timothy Pickering (Feb. 27, 1821), 15 id. at 323-34.
145. Letter from Thomas Jefferson to William Short (Oct. 31, 1819), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 221.
146. Jefferson's admiration of Bacon and Newton is instructive here. See, e.g., Letter from Thomas Jefferson to William Clark (Jan. 27, 1814), reprinted in 14 JEFFERSON WRITINGS, supra note 123, at 79. Jefferson, in his comments on Plato, seems to echo Isaac Newton in his PRINCIPIA, Book III, Rule III (1686): "We are certainly not to relinquish the evidence of experiments for the sake of dreams and vain fictions of our own devising . . . . " On Jefferson's thought, see EVA T.H. BRANN, PARADOXES OF EDUCATION IN A REPUBLIC 170 (1979). See also sources cited supra notes 121, 131.
147. Letter from Thomas Jefferson to Henry Lee (May 8, 1825), reprinted in 16 JEFFERSON WRITINGS, supra note 123, at 118-19.
148. See Letter from Thomas Jefferson to Timothy Pickering (Feb. 27, 1821), reprinted in 15 JEFFERSON WRITINGS, supra note 123, at 324; supra note 142.
149. Abraham Lincoln did not have ready access to the classics, except Euclid and perhaps Aesop and Plutarch. See, e.g., 4 COLLECTED WORKS OF LINCOLN, supra note 140, at 62. However, Lincoln did know the Bible, as well as Shakespeare. It was through Shakespeare that lessons from the classical world have had a profound effect on the English-speaking peoples. See Anastaplo, Virtue of Prudence, supra note 11, at 113-25.
150. There were eventually thirteen States that were said by some in those States to have seceded from the Union. See Confederate States of America, ENCYCLOPEDIA BRITANNICA 285 (14th ed. 1982). The seven States that had seceded by the time the Confederate Constitution was drafted in March 1861 were operating pursuant to a Provisional Constitution of February 8, 1861. Id.
151. CONFEDERATE CONST. OF 1861, art. I, § 8, cl. 17. All the quotations in the text of Lecture No. 10 are, unless otherwise indicated, to the Confederate Constitution of March 11, 1861. That Constitution, as published in 1979 for the University of Georgia Libraries by the Wormsloe Foundation, is set forth in Appendix B.
152. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); see supra note 1.
153. See, e.g, CONFEDERATE CONST. of 1861, art. IV, § 2, cl.1.
154. CONFEDERATE CONST. of 1861, art I, § 9, cl. 20. All this bears on what we call a "line-item veto." See infra Lecture No. 17, § IV.
155. In addition, notice the use of the term federal in the Confederate Constitution, a term never used in the 1787 Constitution. CONFEDERATE CONST. of 1861, art. I, § 9, cl.10. Consider as well the following report:
The United States went to war in 1861 to preserve the Union; it emerged from war in 1865 having created a nation. Before 1861 the two words "United States" were generally used as a plural noun: "the United States are a republic." After 1865 the United States became a singular noun. The loose union of states became a nation. Lincoln's wartime speeches marked this transition. In his first inaugural address he mentioned the "Union" twenty times but the nation not once. In his first message to Congress, on July 4, 1861, Lincoln used the word "Union" thirty-two times and "nation" only three times. But in his Gettysburg Address two and one-half years later, the president did not mention the Union at all but spoke of the "nation" five times to invoke a new birth of freedom and nationhood. And in his second inaugural address on March 4, 1865, Lincoln spoke of the South seeking to dissolve the Union in 1861 and the North accepting the challenge to preserve the Union.
JAMES M. MCPHERSON, ABRAHAM LINCOLN AND THE SECOND AMERICAN REVOLUTION at viii (1990); see also infra Lecture No. 11.
156. CONFEDERATE CONST. of 1861, art I, § 2, cl. 3; § 9, cls. 1, 2, 4; art. IV, § 2, cls. 1, 3; § 3, cl. 3.
157. Lecture No. 11 originated as a talk given on April 14, 1974, at the K.A.M.Isaiah Israel Congregation, in Chicago, Illinois. See also ANASTAPLO, THE ARTIST AS THINKER, supra note 13, at 279-83. The 1974 Lecture was further developed, for publication in CONSTITUTIONAL GOVERNMENT IN AMERICA 421-46 (Ronald K.L. Collins ed., 1980). My discussion of the Emancipation Proclamation is adapted for use here, with much of the instructive material in the notes omitted for this occasion.
The texts of the Preliminary Proclamation (of September 22, 1862) and of the Final Proclamation (of January 1, 1863), which together constitute the Emancipation Proclamation, are taken from 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 433-36, 28-30 respectively.
158. HARRY V. JAFFA, THE CONDITIONS OF FREEDOM 8 (1975); see Anastaplo, Virtue of Prudence, supra note 11, at 165-68 n.64; sources cited infra note 168.
159. Vernon Jarrett, Why We Must Re-evaluate Heroes of the Past, CHI. TRIB., Feb. 20, 1974, § 1, at 14. It should be remembered that Lincoln always had to contend with anti-Negro prejudices of Unionists in the North and Middle States. For Lincoln's periodic, deliberate recourse to talk about "colonization of blacks" as his way of lulling the racial fears of white Unionists, see STEPHEN B. OATES, WITH MALICE TOWARD NONE: THE LIFE OF ABRAHAM LINCOLN 268, 297-99, 307, 312-13, 322, 325-26, 330-31, 339-42 (1977). See also supra note 45.
160. Editorial, CHI. TRIB., Feb. 15, 1974, § 1, at 12.
161. 2 CARL SANDBURG, ABRAHAM LINCOLN: THE WAR YEARS 21-22 (1939). The Secretary of State, William H. Seward, had just said, "I mean that the Emancipation Proclamation was uttered in the first gun fired at Fort Sumter, and we have been the last to hear it." 2 id. at 21.
162. WHAT COUNTRY HAVE I? POLITICAL WRITINGS OF BLACK AMERICANS 52-53 (Herbert J. Storing ed., 1970) (emphasis added) [hereinafter WHAT COUNTRY HAVE I?].
163. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), reprinted in 7 COLLECTED WORKS OF LINCOLN, supra note 140, at 281.
164. WHAT COUNTRY HAVE I?, supra note 162, at 51-52 (emphasis added).
165. 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 388-89.
166. 5 id. at 389.
167. 8 id. at 152 (Annual Message to Congress, Dec. 6, 1864).
168. HARRY V. JAFFA, EQUALITY AND LIBERTY: THEORY AND PRACTICE IN AMERICAN POLITICS 157 (1965) [hereinafter JAFFA, EQUALITY AND LIBERTY]. Today, students of Lincoln and the Civil War are most fortunate to have available to them the pioneering work of Mr. Jaffa, particularly his CRISIS OF THE HOUSE DIVIDED (1959) [hereinafter JAFFA, HOUSE DIVIDED]. My own considerable debt to him is particularly evident in Lecture No. 11, §§ I, II.
For further discussion of Lincoln and the Civil War, see ANASTAPLO, AMERICAN MORALIST, supra note 12, at 537; Anastaplo, HUMAN BEING AND CITIZEN, supra note 11, at 61, 203; Anastaplo, Slavery and the Constitution: Explorations, 19 TEX. TECH L. REV. 677 (1989) [hereinafter Anastaplo, Slavery and the Constitution].
169. JAFFA, EQUALITY AND LIBERTY, supra note 168, at 158.
170. Id. at 163.
171. 2 COLLECTED WORKS OF LINCOLN, supra note 140, at 461-62.
172. Similarly, it can be said that Christian thought (as we have come to know it) may be better seen in someone such as St. Augustine than in Jesus, if only because Jesus was raised as a Jew with relatively little exposure to the philosophical tradition of the Greeks. See infra note 260.
173. 2 SANDBURG, ABRAHAM LINCOLN, supra note 161, at 20.
174. 6 JOHN G. NICOLAY & JOHN HAY, ABRAHAM LINCOLN: A HISTORY 161-62 (1914).
175. 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 433. There are collected in the Appendix to the United States Statutes thirteen of Lincoln's proclamations prior to this one. Both the Preliminary Proclamation and the Final Proclamation bear the superscription, "By the President of the United States: A Proclamation" (and their respective dates); both bear the signature, "By the President: Abraham Lincoln/William H. Seward, Secretary of State."
176. See 4 J.G. RANDALL, JR., LINCOLN, THE PRESIDENT 162 (1945). Too much is made these days of the President as "our Commander in Chief." What he is, according to the Constitution, is merely "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States."
177. 6 COLLECTED WORKS OF LINCOLN, supra note 140, at 407-08.
178. One need only read the youthful Lincoln's Temperance Speech in Springfield, Illinois on February 22, 1842 to sense his lifelong concern about moral passion. See 1 COLLECTED WORKS OF LINCOLN, supra note 140, at 271; JAFFA, HOUSE DIVIDED, supra note 168, at 233; infra text accompanying notes 228, 231.
179. We should remember that Lincoln had even annulled decrees or acts of emancipation by various of his generals in the field. LORD CHARNWOOD, ABRAHAM LINCOLN 268-70, 314, 319-20, 406 (1926). The civilian control of the military was evidently taken for granted throughout the Civil War, both in the North and South.
180. 2 JOHN T. MORSE, JR., ABRAHAM LINCOLN 109 (Boston & New York, Houghton, Mifflin 1893).
181. The two "consent" qualifications are said to have been inserted in the Preliminary Proclamation at the suggestion of Secretary of State Seward. 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 434 n.4.
182. The Emancipation Proclamation refers to all slaves in a rebellious State or part of a State, whereas in § 9 of this Act, Congress had referred primarily to "all slaves of persons who shall hereafter be engaged in rebellion, or who in any way give aid or comfort thereto."
183. See RANDALL, supra note 176, at 156-57; OATES, supra note 159, at 311, 317-20.
184. The clerk had written in everything at the end of what is otherwise Lincoln's handwritten original of the Preliminary Proclamation (beginning at "In witness whereof"). 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 56.
185. Letter from Abraham Lincoln to Salmon P. Chase, Secretary of the Treasury (Sept. 2, 1863), reprinted in 6 COLLECTED WORKS OF LINCOLN, supra note 140, at 428-29; see 2 MORSE, supra note 180, at 3, 99-100; 6 NICHOLAY & HAY, supra note 174, at 405. Lincoln's letter to Chase continues: "Would not many of our friends shrink away appalled? Would it not lose us the elections, and with them, the very cause we seek to advance?" 6 COLLECTED WORKS OF LINCOLN, supra note 140, at 429; see supra note 45. We have noticed that a respect for the Constitution may be seen in Lincoln's provision that the decisive indication a State is not in rebellion is that it is properly represented in Congress. The republican form of government is thereby deferred to.
186. WILLIAM LLOYD GARRISON, THE LIBERATOR No. 1, Jan. 1, 1831, reprinted in JOHN L. THOMAS, THE LIBERATOR: WILLIAM LLOYD GARRISON 128 (1963). For Garrison's "extremist" position, see DOCUMENTS OF UPHEAVAL: SELECTIONS FROM WILLIAM LLOYD GARRISON'S THE LIBERATOR, 1831-1865, at xiii (Truman Nelson ed., 1966).
187. Matthew 10:16.
188. 3 COLLECTED WORKS OF LINCOLN, supra note 140, at 261. Compare 3 id. with 3 id. at 249-50, 277, 279-81. On salutary concealments, see PLATO, REPUBLIC 414E; THUCYDIDES, PELOPONNESIAN WAR, II. 65. See also supra notes 142, 148.
189. 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 358.
190. JAMES C. AUSTIN, ARTEMUS WARD 107-08 (1964); see OATES, supra note 159, at 318-19; 1 SANDBURG, supra note 161, at 583.
191. I take the full text of "High-Handed Outrage at Utica" from THE COMPLETE WORKS OF ARTEMUS WARD 36-37 (Charles Farrar Browne ed., 1898):
In the Faul of 1856, I showed my show in Utiky, a trooly grate sitty in the State of New York.
The people gave me a cordyal recepshun. The press was loud in her prases.
1 day as I was givin a descripshun of my Beests and Snaiks in my usual flowry stile what was my skorn disgust to see a big burly feller walk up to the cage containin my wax figgers of the Lord's Last Supper, and cease Judas Iscarrot by the feet and drag him out on the ground. He then commenced fur to pound him as hard as he cood.
"What under the son are you abowt?" cried I.
Sez he, "What did you bring this pussylanermus cuss here fur?" and hit the wax figger another tremenjis blow on the hed.
Sez I, "You egrejus ass, that air's a wax figger--a representashun of the false 'Postle."
Sez he, "That's all very well for you to say, but I tell you, old man, that Judas Iscarrot can't show hisself in Utiky with impunerty by a darn site!" with which observashun he kaved in Judassis hed. The young man belonged to 1 of the first famerlies in Utiky. I sood him, and the Joory brawt in a verdick of Arson in the 3d degree.
Id. The Artemus Ward volume includes a number of instructive pieces on slavery, Lincoln, and the Civil War.
192. See Proverbs 25:11: "A word fitly spoken is like apples of gold in pictures of silver." (This verse served as the epigraph upon the publication of an earlier form of this Lecture in 1980.)
Lincoln, aware that the Emancipation Proclamation was necessarily limited in scope and not without problems as to its authority, encouraged (in due time) the constitutional amendment with respect to slavery that his Proclamation can be said to have prepared the way for. Thus, he announced on June 9, 1864 that he approved his party's "declaration of so amending the Constitution as to prohibit slavery throughout the nation":
When the people revolt, with a hundred days of explicit notice, that they could, within those days, resume their allegiance, without the overthrow of their institution [of slavery], and that they could not so resume it afterwards, elected to stand out, such an amendment of the Constitution as is now proposed, became a fitting, and necessary conclusion to the final success of the Union cause. Such alone can meet and cover all cavils. Now, the unconditional Union men, North and South, perceive its importance, and embrace it. In the joint names of Liberty and Union, let us labor to give it legal form, and practical effect.
7 COLLECTED WORKS OF LINCOLN, supra note 140, at 380. For the party platform on which Lincoln was commenting, see 7 id. at 381-82, 411.
193. In 1865, the principal draftsman of the Thirteenth Amendment was Senator Lyman Trumbull of Illinois, a State that was part of the Northwest Territory. For Lincoln's celebration of Illinois's taking the lead in ratifying this Amendment, see 8 COLLECTED WORKS OF LINCOLN, supra note 140, at 254-55.
194. Northwest Ordinance art. VI; see supra text accompanying note 29.
195. An exception is made for persons "duly convicted" of crimes. U.S. Const. amend. XIII, § 1. Our sentiments about slavery are now such that we can be troubled by the use of the term slavery to designate the convicted criminal serving his sentence. (Are we not, in our understandable skittishness about certain terms, and especially slavery, somewhat like the Roman republics were about the use of the term king?) The exception here indicates not only that forced labor is still possible for convicted criminals but also that slavery should not be disguised as a system of forced labor for nominal criminals.
196. ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 299. Three States ratified this exercise in desperation before Secession had to be dealt with. Compare Lincoln's own proposed amendment, in his Annual Message to Congress of December 1, 1862, which provided for compensated emancipation of the slaves. 5 COLLECTED WORKS OF LINCOLN, supra note 140, at 530.
197. See Anastaplo, Slavery and the Constitution, supra note 168, at 732. For the text of these seven debates, which first began at Ottawa, Illinois, on August 21, 1858, see 3 COLLECTED WORKS OF LINCOLN, supra note 140, at 1-76, 102-44, 207-44, 283-325.
198. On the "privileges and immunities of citizens of the United States," see 2 CROSSKEY, supra note 52, at 1083-89, 1119-34.
199. This way was also available, to a limited extent, through the Republican Form of Government Guarantee in Article IV.
200. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
201. The lamentable career of Dizzy Dean again comes to mind. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at xvii; MACHIAVELLI, supra note 1, at II. 20 ("[T]he ambition of man is so great that to satisfy a present wish, he does not think of the evil that in a short time results from it.").
202. The emphasis does seem to be upon human beings, whatever consideration may be given by extension to business corporations.
203. Craig v. Boren, 429 U.S. 190, 211 (1976) (Stevens, J., concurring); see ANASTAPLO, THE CONSTITUTIONALIST, supra note 66, at 710-11 n.83.
204. This has been done, in such cases as Bolling v. Sharpe, 347 U.S. 497 (1954), not by making use of either the Privileges and Immunities Clause of Article IV or the Ninth Amendment, but rather by expanding the Due Process Clause of the Fifth Amendment. Nor does it seem to be appreciated that it may be prudent, as was evidently intended by the drafters of the Fourteenth Amendment, to leave in some government of the United States immunity from the full equal-protection restraints. See infra note 211.
205. One problem with the use of the Equal Protection Clause to accomplish what could be better done otherwise may be seen in the Reapportionment Cases: Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964). Would it not have been better if the Republican Form of Government Guarantee had been used in such cases and, even better, if done by Congress rather than by the Courts? See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 173-74, 184-85; infra note 209.
206. Congress was given the power, by a two-thirds vote of each House, to remove this disability for rebellion. U.S. CONST. amend. XIV, § 3.
207. See The Civil Rights Cases, 109 U.S. 3 (1883); The Slaughter- House Cases, 83 U.S. (16 Wall.) 36 (1873).
208. 163 U.S. 537 (1896).
209. 347 U.S. 483 (1954). One scholar has observed: "What finally turned the tide [against racial discrimination] were a series of legislative enactments: the Civil Rights Act of 1964 [42 U.S.C. § 2000A], the Voting Rights Act of 1965 [42 U.S.C. § 1973], and the Fair Housing Act of 1968 [42 U.S.C. § 3601]. The struggle against racial discrimination required the conscientious effort of all three branches." Louis Fisher, The Curious Belief in Judicial Supremacy, 25 SUFFOLK U. L. REV. 85, 113-14 (1991); see also supra note 205.
Suppose two American communities practice obvious racial segregation in the same activities, with one of the communities doing this with the aid of a statute and the other achieving this result through the use of public opinion. Why should not Congress, pursuant to § 5 of the Fourteenth Amendment, be able to deal the same way with both situations?
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APPENDIX A
LETTERS EXCHANGED BY THOMAS JEFFERSON AND JOHN ADAMS (1814)
[From Thomas Jefferson to John Adams]
430 Monticello July 5. 1814.
DEAR SIR
Since mine of Jan. 24. yours of Mar. 14 was recieved. It was not acknoleged in the short one [from me] of May 18. [delivered] by Mr. Rives, the only object of that having been to enable one of our most promising young men to have the advantage of making his bow to you. I learned with great regret the serious illness mentioned in your letter: and I hope Mr. Rives will be able to tell me you are entirely restored. But our machines have now been running for 70. or 80. years, and we must expect that, worn as they are, 431 here a pivot, there a wheel, now a pinion, next a spring, will be giving way: and however we may tinker them up for awhile, all will at length surcease motion. Our watches, with works of brass and steel, wear out within that period. Shall you and I last to see the course the seven-fold wonders of the times will take? The Attila of the age [Napoleon Bonaparte] dethroned, the ruthless destroyer of 10. millions of the human race, whose thirst for blood appeared unquenchable, the great oppressor of the rights and liberties of the world, shut up within the circle of a little island of the Mediterranean [Elba; he was later banished to St. Helena, in the South Atlantic], and dwindled to the condition of an humble and degraded pensioner on the bounty of those he had most injured. How miserably, how meanly, has he closed his inflated career! What a sample of the Bathos will his history present! He should have perished on the swords of his enemies, under the walls of Paris.
'Leon piagato a morte
Sente mancar la vita,
Guarda la sua ferita,
Ne s'avilisce ancor.Cosi fra l'ire estrema rugge, minaccia, e freme,
Che fa tremar morendo
Tal volta it cacciator.'Metast[asio,] Adriano [in Siria, II, 11]
['The lion stricken to death
realizes that he is dying,
and looks at his wounds from which
he grows ever weaker and weaker.[Then with his final wrath he roars,
threatens, and screams,
which makes the hunter
tremble at him dying.']But Bonaparte was a lion in the field only. In civil life a cold-blooded, calculating unprincipled Usurper, without a virtue, no statesman, knowing nothing of commerce, political economy, or civil government, and supplying ignorance by bold presumption. I had supposed him a great man until his entrance into the Assembly des cinq cens, 18. Brumaire (an 8.) [Nov. 9, 1799]. From that date however I set him down as a great scoundrel only. To the wonders of his rise and fall, we may add that of a Czar of Muscovy [Alexander I] dictating, in Paris [in 1814], laws and limits to all the successors of the Caesars, and holding even the balance in which the fortunes of this new world are suspended. I own that, while I rejoice, for the good of mankind, in the deliverance of Europe from the havoc which would have never ceased while Bonaparte should have lived in power, I see with anxiety the tyrant of the ocean [England] remaining in vigor, and even participating in the merit 432 of crushing his brother tyrant. While the world is thus turned up side down, on which side of it are we? All the strong reasons indeed place [Page 850] us on the side of peace; the interests of the continent, their friendly dispositions, and even the interests of England. Her passions alone are opposed to it. Peace would seem now to be an easy work, the causes of the war being removed. Her orders of council will no doubt be taken care of by the allied powers, and, war ceasing, her impressment of our seamen ceases of course. But I fear there is a foundation for the design intimated in the public papers, of demanding a cession of our right in the fisheries [off the northern coast of North America]. What will Massachusetts say to this? I mean her majority, which must be considered as speaking, thro' the organs it has appointed itself, as the Index of it's will. She chose to sacrifice the liberty of our seafaring citizens, in which we were all interested, and with them her obligations to the Co-states; rather than war with England. Will she now sacrifice the fisheries to the same partialities? This question is interesting to her alone: for to the middle, the Southern and Western States they are of no direct concern; of no more than the culture of tobacco, rice and cotton to Massachusetts. I am really at a loss to conjecture what our refractory sister will say on this occasion. I know what, as a citizen of the Union, I would say to her. 'Take this question ad referendum. It concerns you alone. If you would rather give up the fisheries than war with England, we give them up. If you had rather fight for them, we will defend your interests to the last drop of our blood, chusing rather to set a good example than follow a bad one.' And I hope she will determine to fight for them. With this however you and I shall have nothing to do; ours being truly the case wherein 'non tali auxilio, nec defensoribus istis Tempus eget.' ['We do not, at this time, want such aid as that, nor such defenders.' Virgil, Aeneid, II, 521.] Quitting this subject therefore I will turn over another leaf.
I am just returned from one of my long absences, having been at my other home for five weeks past. Having more leisure there than here for reading, I amused myself with reading seriously Plato's republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. While wading thro' the whimsies, the puerilities, and unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this? How the soi- disant Christian world indeed should have [433] done it, is a piece of historical curiosity. But how could the Roman good sense do it? And particularly how could Cicero bestow such eulogies on Plato? Altho' Cicero did not wield the dense logic of Demosthenes, yet he was able, learned, laborious, practiced in the business of the world, and honest. He could not be the dupe of mere style, of which he was himself the first master in the world. With the Moderns, I think, it is rather a matter of fashion and authority. Education is chiefly in the hands of persons who, from their profession, have an interest in the reputation and the dreams of Plato. They give the tone while at school, and few, in their after-years, have occasion to revise their college opinions. But fashion and authority apart, and bringing Plato to the test of reason, take from him his sophisms, futilities, and incomprehensibilities, and what remains? In truth, he is one of the race of genuine Sophists, who has escaped the oblivion of his brethren, first by the elegance of his diction, but chiefly by the adoption and incorporation of his whimsies into the body of artificial Christianity. His foggy mind, is forever presenting the semblances of objects which, half seen thro' a mist, can be defined neither in form or dimension. Yet this which should have consigned him to early oblivion really procured him immortality of fame and reverence. The Christian priesthood, finding the doctrines of Christ leveled to every understanding, and too plain to need explanation, saw, in the mysticisms of Plato, materials with which they might build up an artificial system which might, from it's indistinctness, admit everlasting controversy, give employment for their order, and introduce it to profit, power and pre-eminence. The doctrines which flowed from the lips of Jesus himself are within the comprehension of a child; but thousands of volumes have not yet explained the Platonisms engrafted on them: and for this obvious reason that nonsense can never be explained. Their purposes however are answered. Plato is canonized; and it is now deemed as impious to question his merits as those of an Apostle of Jesus. He is peculiarly appealed [Page 851] to as an advocate of the immortality of the soul; and yet I will venture to say that were there no better arguments than his in proof of it, not a man in the world would believe it. It is fortunate for us that Platonic republicanism has not obtained the same favor as Platonic Christianity; or we should now have been all living, men, women and children, pell mell together, like beasts of the field or forest. Yet 'Plato is a great Philosopher,' said La Fontaine. But says Fontenelle 'do you find his ideas very clear?' 'Oh no! he is of an obscurity impenetrable.' 'Do you not find him full of contradictions?' 'Certainly,' replied La Fontaine, "he is but a Sophist." Yet immediately after, he exclaims again, 'Oh Plato was a great Philosopher.' Socrates had reason indeed to complain of the misrepresentations of Plato; for in truth his dialogues are libels on Socrates.
[434] But why am I dosing you with these Ante-diluvian topics? Because I am glad to have some one to whom they are familiar, and who will not receive them as if dropped from the moon. Our post-revolutionary youth are born under happier stars than you and I were. They acquire all learning in their mothers' womb, and bring it into the world ready-made. The information of books is no longer necessary; and all knolege which is not innate, is in contempt, or neglect at least. Every folly must run it's round; and so, I suppose, must that of self-learning, and self sufficiency; of rejecting the knolege acquired in past ages, and starting on the new ground of intuition. When sobered by experience I hope our successors will turn their attention to the advantages of education. I mean of education on the broad scale, and not that of the petty academies, as they call themselves, which are starting up in every neighborhood, and where one or two men, possessing Latin, and sometimes Greek, a knolege of the globes, and the first six books of Euclid, imagine and communicate this as the sum of science. They commit their pupils to the theatre of the world with just taste enough of learning to be alienated from industrious pursuits, and not enough to do service in the ranks of science. We have some exceptions indeed. I presented one to you lately, and we have some others. But the terms I use are general truths. I hope the necessity will at length be seen of establishing institutions, here as in Europe, where every branch of science, useful at this day, may be taught in it's highest degrees. Have you ever turned your thoughts to the plan of such an institution? I mean to a specification of the particular sciences of real use in human affairs, and how they might be so grouped as to require so many professors only as might bring them within the views of a just but enlightened economy? I should be happy in a communication of your ideas on this problem, either loose or digested. But to avoid my being run away with by another subject, and adding to the length and ennui of the present letter, I will here present to Mrs. Adams and yourself the assurance of my constant and sincere friendship and respect.
TH: JEFFERSON
[From John Adams to Thomas Jefferson]
Quincy July 16. 1814
DEAR SIR
I recd. this morning your favour of the 5th. and as I can never let a Sheet of your's rest I sit down immediately to acknowledge it.
[435] Whenever Mr. Rives, of whom I have heard nothing, shall arrive he shall receive all the cordial Civilities in my power.
I am sometimes afraid that my "Machine" will not "surcease motion" soon enough; for I dread nothing so much as "dying at top" and expiring like Dean Swift "a driveller and a Show" or like Sam. Adams, a Grief and distress to his Family, a weeping helpless Object of Compassion for Years.
I am bold to say that neither you nor I, will live to see the Course which "the Wonders of the Times" will take. Many Years, and perhaps Centuries must pass, before the current will acquire a settled direction. If the Christian Religion as I understand it, or as you understand it, should maintain its Ground as I believe it will; Yet Platonick Pythagoric, Hindoo, and cabballistical Christianity which is Catholic Christianity, and which has prevailed for 1500 Years, has recd. a mortal Wound of which the Monster must finally [Page 852] die; Yet so strong is his constitution that he may endure for Centuries before he expires. Government has never been much studied by Mankind. But their Attention has been drawn to it, in the latter part of the last Century and the beginning of this, more than at any former Period: and the vast Variety of experiments that have been made of Constitutions, in America in France, in Holland, in Geneva in Switzerland, and even in Spain and South America, can never be forgotten. They will be studied, and their immediate and remote Effects, and final Catastrophys noted. The result in time will be Improvements. And I have no doubt that the horrors We have experienced for the last forty Years, will ultimately, terminate in the Advancement of civil and religious Liberty, and Ameliorations, in the condition of Mankind. For I am a Believer, in the probable improvability and Improvement, the Ameliorabi[li]ty and Amelioration in human Affairs: though I never could understand the Doctrine of the Perfectability of the human Mind. This has always appeared to me, like the Phylosophy or Theology of the Gentoos, viz. "that a Brachman by certain Studies for a certain time pursued, and by certain Ceremonies a certain number of times repeated, becomes Omniscient and Almighty."
Our hopes however of sudden tranquility ought not to be too sanguine. Fanaticism and Superstition will still be selfish, subtle, intriguing, and at times furious. Despotism will still struggle for domination; Monarchy will still study to rival nobility in popularity; Aristocracy will continue to envy all above it, and despise and oppress all below it; Democracy will envy all, contend with all, endeavor to pull down all; and when by chance it happens to get the Upper hand for a short time, it will be revengeful bloody and cruel. These and other Elements of Fanaticism and Anarchy will yet for a long time continue a Fermentation, which will excite alarms and require Vigilance.
Napoleon is a Military Fanatic like Achilles, Alexander, Caesar, [436] Mahomet, Zingis Kouli, Charles 12th. etc. The Maxim and Principle of all of them was the same "Jura negat sibi cata [i.e., nata], nihil non arrogat Armis." ["He denies that laws were made for him; he arrogates everything to himself by force of arms." Horace, Ars Poetica, 122.]
But is it strict, to call him An Usurper? Was not his Elevation to the Empire of France as legitimate and authentic a national Act as that of William 3d. or the House of Hanover to the throne of the 3 Kingdoms or as the Election of Washington to the command of our Army or to the Chair of the States.
Human Nature, in no form of it, ever could bear Prosperity. That peculiar tribe of Men, called Conquerors, more remarkably than any other have been swelled with Vanity by any Series of Victories. Napoleon won so many mighty Battles in such quick succession and for so long a time, that it was no Wonder his brain became compleatly intoxicated and his enterprises, rash, extravagant and mad.
Though France is humbled, Britain is not. Though Bona is banished a greater Tyrant and wider Usurper still domineers. John Bull is quite as unfeeling, as unprincipled, more powerful, has shed more blood, than Bona. John by his money his Intrigues and Arms, by exciting Coalition after coalition against him made him what he was, and at last, what he is. How shall the Tyrant of Tyrants, be brought low? Aye! there's the rub. I still think Bona great, at least as any of the Conquerors. "The Wonders of his rise and fall," may be seen in the Life of King Theodore, or Pascall Paoli or Rienzi, or Dyonisius or Mazzionelli, or Jack Cade or Wat Tyler. The only difference is that between miniatures and full length pictures. The Schoolmaster at Corinth, was a greater Man, than the Tyrant of Syracuse; upon the Principle, that he who conquers himself is greater than he who takes a City. Tho' the ferocious Roar of the wounded Lion, may terrify the Hunter with the possibility of another dangerous leap; Bona was shot dead at once, by France. He could no longer roar or struggle growl or paw, he could only gasp the grin of death. I wish that France may not still regret him. But these are Speculations in the Clouds. I agree with you that the Milk of human kindness in the Bourbons is safer for Mankind than the fierce Ambition of Napoleon.
The Autocrator [of Russia] appears in an imposing Light. Fifty Years ago English Writers, held up terrible Consequences from "thawing out the monstrous northern [Page 853] Snake." If Cossacks and Tartars, and Goths and Vandalls and Hunns and Ripuarians, should get a taste of European Sweets, what may happen? Could Wellingtons or Bonapartes, resist them? The greatest trait of Sagacity, that [Czar] Alexander [of Russia] has yet exhibited to the World is his Courtship of the United States. But whether this is a mature well digested Policy or [437] only a transient gleam of thought, still remains to be explained and proved by time.
The "refractory Sister" [Massachusetts] will not give up the Fisheries. Not a Man here dares to hint at so base a thought.
I am very glad you have seriously read Plato: and still more rejoiced to find that your reflections upon him so perfectly harmonize with mine. Some thirty Years ago I took upon me the severe task of going through all his Works. With the help of two Latin Translations, and one English and one French Translation and comparing some of the most remarkable passages with the Greek, I laboured through the tedious toil. My disappointment was very great, my Astonishment was greater and my disgust was shocking. Two Things only did I learn from him. 1. that Franklins Ideas of exempting Husbandmen and Mariners etc. from the depredations of War were borrowed from him. 2. that Sneezing is a cure for the Hickups. Accordingly I have cured myself and all my Friends of that provoking disorder, for thirty years with a Pinch of Snuff.
Some Parts of some of his Dialogues are entertaining, like the Writings of Rousseau: but his Laws and his Republick from which I expected most, disappointed me most. I could scarcely exclude the suspicion that he intended the latter as a bitter Satyre upon all Republican Government, as Xenophon undoubtedly designed by his Essay on Democracy, to ridicule that Species of Republick. In a late letter to the learned and ingenious Mr. Taylor of Hazelwood, I suggested to him the Project of writing a Novel, in which The Hero should be sent upon his travels through Plato's Republick, and all his Adventures, with his Observations on the principles and Opinions, the Arts and Sciences, the manners Customs and habits of the Citizens should be recorded. Nothing can be conceived more destructive of human happiness; more infallibly contrived to transform Men and Women into Brutes, Yahoos, or Daemons than a Community of Wives and Property. Yet, in what, are the Writings of Rousseau and Helvetius wiser than those of Plato? "The Man who first fenced a Tobacco Yard, and said this is mine ought instantly to have been put to death" says Rousseau. "The Man who first pronounced the barbarous Word "Dieu," ought to have been immediately destroyed," says Diderot. In short Philosophers ancient and modern appear to me as Mad as Hindus, Mahomitans, and Christians. No doubt they would all think me mad; and for any thing I know this globe may be, the bedlam, Le Bicatre [i.e., Bicetre] of the Universe.
After all; as long as Property exists, it will accumulate in Individuals and Families. As long as Marriage exists, Knowledge, Property and Influence will accumulate in Families. Your and our equal Partition of intestate Estates, instead of preventing will in time augment the Evil, if it is one.
The French Revolutionists saw this, and were so far consistent. When [438] they burned Pedigrees and genealogical Trees, they annilated, as far as they could, Marriages, knowing that Marriage, among a thousand other things was an infallible Source of Aristocracy. I repeat it, so sure as the Idea and the existence of PROPERTY is admitted and established in Society, Accumulations of it will be made, the Snow ball will grow as it rolls.
Cicero was educated in the Groves of Academus where the Name and Memory of Plato, were idolized to such a degree, that if he had wholly renounced the Prejudices of his Education his Reputation would have been lessened, if not injured and ruined. In his two Volumes of Discourses of Government We may presume, that he fully examined Plato's Laws and Republick as well as Aristotle’s Writings on Government. But these have been carefully destroyed; not improbably, with the general Consent of Philosophers, Politicians and Priests. The Loss is as much to be regretted as that of any Production of Antiquity. [Page 854]
Nothing seizes the Attention, of the stareing Animal, so surely, as Paradox, Riddle, Mystery, Invention, discovery, Mystery, Wonder, Temerity.
Plato and his Disciples, from the fourth Century Christians, to Rousseau and Tom Paine, have been fully sensible of this Weakness in Mankind, and have too successfully grounded upon it their Pretensions to Fame. I might indeed, have mentioned Bolingbroke, Hume, Gibbon Voltaire Turgot Helvetius Diderot, Condorcet, Buffon De La Lande and fifty others; all a little cracked! Be to their faults a little blind; to their Virtues ever kind.
Education! Oh Education! The greatest Grief of my heart, and the greatest Affliction of my Life! To my mortification I must confess, that I have never closely thought, or very deliberately reflected upon the Subject, which never occurs to me now, without producing a deep Sigh, an heavy groan and sometimes Tears. My cruel Destiny separated me from my Children, almost continually from their Birth to their Manhood. I was compelled to leave them to the ordinary routine of reading writing and Latin School, Academy and College. John alone was much with me, and he, but occasionally. If I venture to give you any thoughts at all, they must be very crude. I have turned over Locke, Milton, Condilac Rousseau and even Miss. Edgeworth as a bird flies through the Air. The Praecepter [by Robert Dodsley], I have thought a good Book. Grammar, Rhetorick, Logic, Ethicks mathematicks, cannot be neglected; Classicks, in spight of our Friend [Benjamin] Rush, I must think indispensable. [Rush advocated dropping Greek and Latin from the school curriculum, except for the few students who would go to college.] Natural History, Mechanicks, [439] and experimental Philosophy, Chymistry etc att least their Rudiments, can not be forgotten. Geography Ast[ron]omy, and even History and Chronology, tho' I am myself afflicted with a kind of Pyrrhonism in the two latter, I presume cannot be omitted. Theology I would leave to Ray, Derham, Nicuenteyt and Payley, rather than to Luther Zinzindorph, Sweedenborg Westley, or Whitefield, or Thomas Aquinas or Wollebius. Metaphysics I would leave in the Clouds with the Materialists and Spirtualists, with Leibnits, Berkley Priestley and Edwards, and I might add Hume and Reed, or if permitted to be read, it should be with Romances and Novels. What shall I say of Musick, drawing, fencing, dancing and Gymnastic Exercises? What of Languages Oriental or Occidental? of French Italian German or Russian? of Sanscrit or Chinese?
The Task you have prescribed to me of Grouping these Sciences, or Arts, under Professors, within the Views of an enlightened Economy, is far beyond my forces. Loose indeed and indigested must be all the hints, I can note. Might Gramar, Rhetoric, Logick and Ethicks be under One Professor? Might Mathematicks, Mechanicks, Natural Phylosophy, be under another? Geography and Astro[no]my under a third. Laws and Government, History and Chronology under a fourth. Classicks might require a fifth.
Condelacs course of Study has excellent Parts. Among many Systems of Mathematicks English, French and American, there is none preferable to Besouts Course La Harps Course of Litterature is very valuable.
But I am ashamed to add any thing more to the broken innuendos except Assurances of the continued Friendship of
JOHN ADAMS
[These two letters are copied from THE ADAMS-JEFFERSON LETTERS 430-39 (Lester J. Cappon ed., 1971). The beginning of each page in the Cappon edition is indicated in this Appendix by its page number in brackets. The original spelling and punctuation are left unchanged, except where indicated by brackets. Brackets are also used to enclose explanatory material.] [Page 855]
APPENDIX B
THE CONFEDERATE CONSTITUTION (1861)
CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility and secure the blessings of liberty to ourselves and our posterity¾invoking the favor and guidance of Almighty God¾do ordain and establish this Constitution for the Confederate States of America.
ARTICLE 1.
Section 1.
All legislative powers herein delegated shall be vested in a Congress of the Confederate States, which shall consist of a Senate and House of Representatives.
Section 2.
1. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.
2. No person shall be a representative, who shall not have attained the age of twenty-five years, and be a citizen of the Confederate States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.
3. Representatives and Direct Taxes shall be apportioned among the several States which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. The actual enumeration shall be made within three years after the first meeting of the Congress of the Confederate States, and within every subsequent term of ten years, in such manner as they shall, by law, direct. The number of Representatives shall not exceed one for every fifty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of South Carolina shall be entitled to choose six; the State of Georgia ten; the State of Alabama nine; the State of Florida two; the State of Mississippi seven; the State of Louisiana six; and the State of Texas six.
4. When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies.
5. The House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeachment; except that any judicial or other federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature thereof.
Section 3.
1. The Senate of the Confederate States shall be composed of two Senators from each State, chosen for six years by the legislature thereof, at the regular session next immediately preceding the commencement of the term of service; and each Senator shall have one vote.
2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the expiration of the sixth year; so [Page 856] that one- third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
3. No person shall be a Senator who shall not have attained the age of thirty years, and be a citizen of the Confederate States; and who shall not, when elected, be an inhabitant of the State for which he shall be chosen.
4. The Vice-President of the Confederate States shall be President of the Senate, but shall have no vote, unless they be equally divided.
5. The Senate shall choose their other officers; and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the Confederate States.
6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the Confederate States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.
7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the Confederate States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment according to law.
Section 4.
1. The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.
2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day.
Section 5.
1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.
2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of the whole number, expel a member.
3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.
4. Neither House, during the session of Congress, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
Section 6.
1. The Senators and Representatives shall receive a compensation for their services to be ascertained by law, and paid out of the treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
2. No Senator or Representative shall, during the time for which he was elected, be [Page 857] appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant to the principal officers in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.
Section 7.
1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.
2. Every bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the Confederate States; if he approve, he shall sign it; but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill, shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law. The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.
3. Every order, resolution or vote, to which the concurrence of both Houses may be necessary (except on a question of adjournment) shall be presented to the President of the Confederate States; and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be re-passed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
Section 8.
The Congress shall have power¾
1. To lay and collect taxes, duties, imposts and excises, for revenue necessary to pay the debts, provide for the common defence, and carry on the Government of the Confederate States; but no bounties shall be granted from the treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts and excises shall be uniform throughout the Confederate States:
2. To borrow money on the credit of the Confederate States:
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but neither this, nor any other clause contained in the constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons and buoys, and other aids to navigation upon the coasts, and the improvement of harbors, and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof:
4. To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same: [Page 858]
5. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures:
6. To provide for the punishment of counterfeiting the securities and current coin of the Confederate States:
7. To establish post offices and post routes; but the expenses of the Post Office Department, after the first day of March, in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues:
8. To promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries:
9. To constitute tribunals inferior to the Supreme Court:
10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:
11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:
12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years:
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and naval forces:
15. To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions:
16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:
17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States, and the acceptance of Congress, become the seat of the Government of the Confederate States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: and
18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the Confederate States, or in any department or officer thereof.
Section 9.
1. The importation of negroes of the African race, from any foreign country, other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.
2. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.
3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.
4. No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves, shall be passed.
5. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
6. No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.
7. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.
8. No money shall be drawn from the treasury, but in consequence of appropriations [Page 859] made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
9. Congress shall appropriate no money from the treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of Department, and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the government, which it is hereby made the duty of Congress to establish.
10. All bills appropriating money shall specify in federal currency, the exact amount of each appropriation, and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or such service rendered.
11. No title of nobility shall be granted by the Confederate States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign State.
12. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the government for a redress of grievances.
13. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.
14. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
15. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
16. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
17. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
18. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact so tried by a jury shall be otherwise re-examined in any court of the Confederacy, than according to the rules of the common law.
19. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
20. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 10.
1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in [Page 860] payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.
2. No State shall, without the consent of the Congress; lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the Confederate States; and all such laws shall be subject to the revision and control of Congress.
3. No State shall, without the consent of Congress, lay any duty on tonnage, except on sea-going vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue thus derived, shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof.
ARTICLE II.
Section 1.
1. The executive power shall be vested in a President of the Confederate States of America. He and the Vice-President shall hold their offices for the term of six years: but the President shall not be re-eligible. The President and Vice-President shall be elected as follows:
2. Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the Confederate States, shall be appointed an elector.
3. The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of the government of the Confederate States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted, the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death, or other constitutional disability of the President.
4. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. [Page 861]
5. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the Confederate States.
6. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which say shall be the same throughout the Confederate States.
7. No person except a natural born citizen of the Confederate States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the limits of the Confederate States, as they may exist at the time of his election.
8. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice-President; and the Congress may, by law, provide for the case of removal, death, resignation or inability both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected.
9. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the Confederate States, or any of them.
10. Before he enters 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 Confederate States, and will, to the best of my ability, preserve, protect, and defend the Constitution thereof."
Section 2.
1. The President shall be commander-in-chief of the army and navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offenses against the Confederate States, except in cases of impeachment.
2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the Confederate States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in courts of law or in the heads of Departments.
3. The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Department may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.
4. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess. [Page 862]
Section 3.
1. The President shall from time to time, give to the Congress information of the state of the Confederacy, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them: and in case of disagreement between them, with respect to the time of adjournment, be may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faith-fully executed, and shall commission all the officers of the Confederate States.
Section 4.
1. The President, Vice-President, and all civil officers of the Confederate States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.
ARTICLE III.
Section 1.
1. The judicial power of the Confederate States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and Inferior Courts, shall hold their offices during good behavior, and shall, at stated times receive for their services a compensation which shall not be diminished during their continuance in office.
Section 2.
1. The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State where the State is plaintiff, between citizens claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens or subjects; but no State shall be sued by a citizen or subject of any foreign State.
2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.
3. The trial of all crimes, except in cases of impeachment; shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
Section 3.
1. Treason against the Confederate States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. [Page 863]
ARTICLE IV.
Section 1.
1. Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Section 2.
1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
2. A person charged in any State with treason, felony, or other crime against the laws of such State, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
3. No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs, or to whom such service or labor may be due.
Section 3.
1. Other States may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives, and two-thirds of the Senate, the Senate voting by States; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.
2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Confederate States, including the lands thereof.
3. The Confederate States may acquire new territory, and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory, the institution of negro slavery as it now exists in the Confederate States, shall be recognized and protected by Congress, and by the territorial government; and the inhabitants of the several Confederate States and Territories, shall have the right to take to such territory any slaves, lawfully held by them in any of the States or Territories of the Confederate States.
4. The Confederate States shall guaranty to every State that now is or hereafter may become a member of this Confederacy, a republican form of government, and shall protect each of them against invasion; and on application of the Legislature (or of the Executive when the legislature is not in session) against domestic violence.
ARTICLE V.
Section 1.
1. Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention¾voting by States¾and the same be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds [Page 864] thereof--as the one or the other mode of ratification may be proposed by the general convention--they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.
ARTICLE VI.
1. The government established by this Constitution is successor of the Provisional Government of the Confederate States of America; and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.
2. All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the Confederate States under this Constitution as under the Provisional Government.
3. This Constitution, and the laws of the Confederate States, made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.
4. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the Confederate States.
5. The enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States.
6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or the people thereof.
ARTICLE VII.
1. The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
2. When five States shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution, shall prescribe the time for holding the election of President and Vice-President; and for the meeting of the Electoral College; and for counting the votes, and inaugurating the President. They shall also prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.
EXTRACT FROM THE JOURNAL OF THE CONGRESS OF THE CONFEDERATE STATES OF AMERICA (MONTGOMERY, ALABAMA)
Congress, March 11, 1861
On the question of the adoption of the Constitution of the Confederate States of America, the vote was taken by yeas and nays [in the Congress that drafted the Constitution]; and the Constitution was unanimously adopted, as follows:
Those who voted in the affirmative being Messrs. Walker, Smith, Curry, Hale, McRae, Shorter and Fearn, of Alabama, (Messrs. Chilton and Lewis being absent;) Messrs. Morton, Anderson and Owens, of Florida; Messrs. Toombs, Howell Cobb, Bartow, Nisbet, Hill, Wright, Thomas R. R. Cobb and Stephens, of Georgia, (Messrs. Crawford and Kenan being absent;) Messrs. Perkins, de Clouet, Conrad, Kenner, Sparrow and Marshall, [Page 865] of Louisiana; Messrs. Harris, Brooke, Wilson, Clayton, Barry and Harrison, of Mississippi, (Mr. Campbell being absent;) Messrs. Rhett, Barnwell, Keitt, Chesnut, Memminger, Mills, Withers and Boyce, of South Carolina; Messrs. Reagan, Hemphill, Waul, Gregg, Oldham and Ochiltree, of Texas, (Mr. Wiggfall being absent.)
A true copy: J. J. HOOPER. Secretary of the Congress. [This constitution is copied from the version published in 1979 by The Wormsloe Foundation for the University of Georgia Libraries. That version is identified as a facsimile of the constitution ratified and ordered to be published by the Georgia State Ratifying Convention in March 1861.]