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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